Contractor Liability: Training Your Employees Is a Tall Order

Liability lurks like an alligator waiting for trespassers to fall into its swamp. Many view the Environmental Protection Agency’s RRP rule as a nuisance, at best, and at worst an opportunity to be sued or fined.

Smart contractors have already skirted the first and most obvious liability sinkholes, by becoming individual Certified Renovators and earned an EPA firm certification. Next in the liability quagmire is training the firm’s employees.

As an EPA-accredited RRP training provider, I recognized early on EPA’s requirement that Certified Renovators must train their own employees in lead safe techniques, was a tall order. In short, they are expected to become overnight experts in teaching these lead safe work practices.

I’ve spoken about this dilemma with a number of attorneys. All agreed, if a firm fails to train their employees in lead safe work practices or fails to document the training, then the contractors are vulnerable to law suits and EPA fines.

The risk comes in two forms. First is civil liability, which is when a customer, neighbor, or some other aggrieved party sues the contractor. Lawsuits will inevitably include statements like, “not only did the workers not utilize lead safe work practices, but they were never properly trained to utilize lead safe work practices.” Allegations like these add to the contractor’s burden of proof; i.e., the firm must convince the court that it and/or its representatives, including subcontractors, conducted the renovation in accordance with municipal, state, federal regulations, and accepted industry practices.

The second area of liability is the EPA’s power to levy fines. Traditionally, the EPA has responded to citizens’ complaints. Currently, the federal agency is proactively auditing contractors’ records.

Just this week, a contractor asked for my assistance at an EPA audit of their records. The agency asked my client for documentation proving they conducted their renovations in a lead-safe manner and provided pre renovation education with the Renovate Right pamphlet. Because RRP regulations went into effect on April 22, 2008, my client’s audit included renovation jobs that in were conducted between 2008 and 2010.

An important part of the documentation that protects contractors from EPA fines and civil lawsuits relates to employee training. Remember, you must train your employees, but you cannot train your subcontractors. They must be trained and certified by an EPA accredited training provider.

Proper documentation of an employee’s (non certified worker’s) training should include: worker’s name, a description of the lead-safe work practices, and dates they were trained. Documents include a signed list of skill sets for; interior containment set up, interior cleaning with a HEPA vacuum that meets EPA’s definition of a HEPA vacuum, and knowledge of a two-bucket mop system. Training must include exterior containment techniques and cleanup. Workers must be trained in proper disposal techniques for waste, including how to dry decontaminate a goose necked bag and how to wrap large components. Last, but not least, the form must be signed by the Certified Renovator who conducted the training.

Certified Renovators may think training their employees and documenting the training is burdensome, but there are a couple of comprehensive and inexpensive training programs to assist them. Employee training programs are offered online the other on DVD. These educational offerings will no doubt train employees better, faster, and for less money than can be expected of someone whose experience might be limited to an eight-hour training program. Easy-to-complete training documentation forms are included some of the training packages. The DVDs are an excellent “How To” reference tool for Certified Renovators, while online training programs offered the benefit of final exams to help document proficiency.

When evaluating training programs, whether it’s a DVD or online, we recommend choosing one that has been professionally produced and provides hands-on demonstrations of lead-safe work practices, including tricks of the trade from contractors who are veterans in building containment.

Every coin has two sides, and complying with government regulations to avoid liability is only one side. If, by training your employees to Renovating Right, your firm successfully avoids liability, inevitably you have helped to protect families against lead poisoning. That’s the coin’s shiny flipside.

Please stay tuned to our next letter for more tips on how to turn environmental liability into opportunity. Until then, work smarter, better, faster and good luck in good business.

Francis Xavier (Rich) Finigan is the president the American Indoor Air Quality Assessment Services, an EPA accredited training provider. His background is in building, architecture, and applied environment science. Rich has a BS Environmental Science and was formerly the president of the national nonprofit (IESO) writing ANSI environmental standards. He is currently the educational director for www.seminars-online.net and may be reached at INFO @AIAQAS.com or 877-640-5140.

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Multi-city effort seeks to spur RRP compliance

A coordinated campaign involving partners in more than ten major U.S. cities has been operating since September to promote compliance with the EPA’s Remodeling, Repair and Painting (RRP) Rule by contractors, landlords, government agencies and others covered by the Rule. The campaign is being coordinated by the Washington DC-based non-profit group Parents for Nontoxic Alternatives. To date, the campaign has identified and contacted several hundred companies and agencies that had neither previously sought nor obtained their required firm certifications from EPA, warning them that they could be sued by either EPA or a campaign partner organization if they fail to comply with the law – the first step in a process that could include legal action against recalcitrant firms and agencies.

The RRP Rule seeks to ensure lead-safe renovation, repair and painting practices that protect occupant and worker health in our private housing stock and child-occupied facilities. Although all contractors, school systems, child care facilities, and landlords – including public housing authorities – whose employees perform work that disturbs paint in pre-1978 homes or child occupied facilities were supposed to become EPA-certified renovation firms by April 22 this year, a substantial majority still have not done so. EPA estimates that fewer than one-third of all entities covered by RRP’s firm certification requirement have become certified to date, although the number is growing steadily. The remaining firms are either unaware of the rule or reluctant to comply.

Although EPA has conducted a modest awareness campaign about the Rule, the agency acknowledges that it has no immediate plans to begin robust enforcement. The agency is beginning with a “compliance assistance” posture for the most part, and when the agency shifts to an enforcement emphasis in 2011 it is expected to be mainly reactive to complaints rather than proactive. Thus for the next several months, especially in the 40 states plus DC that are relying on EPA for enforcement of the law (10 states now have delegated authority to enforce the RRP Rule), it will fall mainly to concerned lead poisoning prevention advocates to take proactive measures to bring recalcitrant contractors into compliance with the Rule. This has been the rationale for the multi-city compliance campaign.

The campaign’s approach is similar to strategies employed by nonprofit groups that help enforce fair housing laws by “testing” landlords and real estate agents who may be illegally discriminating and reporting or suing those who are shown to be discriminating. In most cities, local campaign partners have identified more than a hundred firms each that are not yet certified but appear to be covered by the RRP’s firm certification requirement, either because they are advertising services covered by the Rule or simply because they employ their own repair and maintenance personnel that work in pre-1978 properties. Under the Rule, it’s even illegal for a non-certified firm to offer or claim to perform services that would be covered under the Rule. Local campaign partners have written to or called these firms during the fall and given them an informal warning that they either need to become certified or stop advertising and performing renovation services in violation of the Rule.

Local partners are now at the stage of beginning to send official 60-day notices of intent to sue to the firms that variously failed to respond to the informal warnings, have not explained why they need not become a certified firm, or have not provided evidence that they have become or are becoming certified. These 60-day notices are required by the citizen suit provisions of Section 2619 of the Toxic Substances Control Act which empowers anyone to file a civil action in U.S. District Court for compliance with the RRP Rule. Under the law, local partners may also pursue damages for injuries resulting from the firm’s work practices, including its failure to follow other provisions of the RRP Rule, and they may ask the court to award them costs of the suit and reasonable fees for attorneys and expert witnesses. EPA may step in before the expiration of the 60-day notice period and take enforcement action.

Already, the campaign is having a positive impact. In each city, local campaign partners are finding that informal warnings are sufficient to prompt many firms and agencies to submit their firm certification applications to EPA voluntarily. In some cases, firms and agencies said that they actually were not aware of the RRP Rule – or at least not aware of the law’s firm certification requirement – prior to hearing from the campaign. In some cases, firms have told local campaign partner groups that they do not perform work covered by the Rule. In such cases, the local partners seek to verify this claim before dropping the matter. Most firms appear to be responding truthfully, but not all. Reactions by firms and agencies to the informal warnings have ranged widely, from thanking the campaign for making them aware of the law to expressions of outright hostility. In most cases, local campaign partners are able to defuse the angry reactions by pointing out that they are warning as many contractors as possible about the need to comply and have not singled out specific firms for the warnings. This, local partners explain, will gradually bring about more widespread compliance with RRP and level the playing field for all. Contractors who do comply with the law will benefit by having fewer non-compliant competitors with the ability to undercut their prices.

The largest firm that the campaign convinced to become certified early in its work was Lowe’s, the home improvement retail chain that contracts with installers of windows and other products sold by the company. Initially, Lowe’s took the position that they were not required to be certified, saying that the installers were independent contractors, not Lowe’s employees. But following correspondence between the campaign and Lowe’s executives and lawyers and after two phone meetings between the campaign staff and Lowe’s attorneys, the company agreed to submit their application for firm certification to EPA in September and the company is now RRP certified. The campaign noted that Lowe’s itself is a party to their installation contracts with its customers and that Lowe’s advertising implies that the company is providing the installation service. For example, the Lowe’s web site says, “Let Us Do the Installation for You.”

Local campaign partner groups have been surprised to find that such a large proportion of local contractors and major landlords have not yet become RRP certified, and they especially have been astonished to find that even some major public housing authorities and school systems are not yet in compliance.

As non-certified firms have begun to receive the 60-day notices of intent to sue, more of them are moving to comply with the firm certification requirement. These notices are sent via certified mail, and certified copies also go to the EPA Administrator and the Attorney General of the United States (or, in the case of states that have authority to enforce the RRP Rule, to state officials). The notices have proven to be less easy to ignore than the informal letters, emails and calls used initially to give these firms a courtesy heads-up about the law’s requirements. Local partner groups also may soon begin suing non-compliant firms and agencies using volunteer attorneys, and begin publicizing which firms and agencies are ignoring the law. A subsequent article will report on this next phase of the campaign.

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Lead-Safe List Comics

lead-safe funnies rrp rule containment

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Cities Pioneer True Local Enforcement of EPA’s RRP Rule through Permitting Process

By Ralph Scott

Lead poisoning prevention advocates have argued that enforcement of EPA’s Renovation, Repair and Painting (RRP) Rule that relies mainly on enforcement by ten regional EPA offices, each with a small number of enforcement staff responsible for several states, will not be able to do much more than respond to the most serious complaints of violations and will be unlikely to take on proactive enforcement. Enforcement personnel will be too remote and thinly-spread to monitor violations throughout each region. The more local the enforcement is, advocates argue, the more robust and proactive it can be. State-level adoptions of the Rule, which have happened already in nine states and are pending in several more, should improve the likelihood for more effective enforcement, many believe, and EPA implicitly accepts this idea as they promote state, tribe and territory adoptions of the Rule. The RRP Rule does not provide explicit authority for localities to take over the federal enforcement role. But now, less than 6 months since RRP Rule’s effective date, a few cities – including Schenectady, NY; Burlington, VT; and Superior, WI – have adopted or are adopting policies to integrate RRP requirements into their building permitting practices, and all municipalities in Minnesota will soon begin verifying RRP certification of firms seeking key permits for work on pre-1978 homes. These locales are pointing the way for the rest of the country toward a promising strategy for making true local enforcement of the Rule a reality.

In Burlington, VT, where a lead safety ordinance was adopted in February 2009, the local lead abatement program, city attorney’s office and the code enforcement agency worked together to ensure that the law included explicit authority for the city to enforce all state and federal lead poisoning prevention requirements, both existing and future. According to Jeff Tanguay, coordinator of the Burlington Lead Program, this was done because they knew the RRP Rule was imminent and they wanted to make enforcement happen at the local level. With explicit legal authority to enforce RRP, Burlington officials are presently working out exactly how this will be accomplished. Tanguay notes that permits are required for virtually all renovation and significant repair jobs, so ideally the city will require proof of RRP certification before a permit is issued. Burlington’s RRP enforcement authority will also allow the city to require contractors to document that they followed the RRP Rule’s cleaning and cleaning verification requirements. To ensure that contractors are prepared for the policy, Burlington’s building inspector has been telling contractors about it for several months, and the city has assisted in making local trainings available. Tanguay expects to begin enforcement in the spring of 2011. The local lead law gives Burlington several enforcement tools, including the power to order work to stop, issuing “tickets” that typically carry a $75 fine to contractors caught violating the law, and, for more serious or persistent violations where a formal letter of violation is issued, fines that can be increased and/or legal action can be taken.

Superior, WI, also has added a requirement for RRP firm certification to the city’s building permit process. Wisconsin is one of 10 states that has already received authority to administer RRP. Last year, in an unrelated move, the state Department of Commerce instituted new licensing and annual continuing education requirements for contractors and landlords that perform work in non-owner occupied properties. To support lead safety, the department made the RRP Renovator course worth 8 continuing education units toward the 12 unit annual requirement. The Lead-Free Douglas County Task Force saw the new licensing and education requirements as an opportunity to educate the Superior Building Department staff about the dangers of lead paint. Over the course of three community meetings that included the participation of the Superior Landlord Association Program (SLAP), participants’ found consensus for making it a priority to protect children from lead poisoning. Concretely, Chief Building Inspector Dan Curran made the declaration, “I will not be responsible for lead poisoning a child,” and soon afterward made the decision to require proof of RRP firm certification alongside proof of state contractor license in the city’s permit application form.

In Schenectady, NY, city officials say that they have already started asking tradespeople seeking permits to work on homes constructed before 1978 for proof that they have completed the RRP Renovator training or have signed up to take the course soon. But effective in January 2011, the city plans to require anyone seeking a permit to provide a copy of their RRP firm certification, too, and a copy of this certification will be attached to their permit application. The city felt that it needed no explicit legal authority beyond its municipal police powers to adopt this policy. The permit office has access to information about the construction date for all homes. Nearly all jobs, from remodeling projects to roof work to window replacement, require a permit in Schenectady. The only significant exception is that painting projects do not require permits. If a contractor is caught working without a permit and has no RRP firm certification and is otherwise violating the RRP Rule, officials will cite them for failure to obtain the permit and refer the remaining RRP violations to EPA for additional enforcement.

Finally, and likely most significantly, on May 13, Minnesota adopted a new law (SF 3128) that will soon require all municipalities in the state to verify RRP firm certification of residential builders, remodelers, roofers and manufactured home installers – the four categories of building contractors that are covered by state licensing requirements – when they request a permit to work on homes constructed prior to 1978. The effective date of this law is February 1, 2011. The statute can be obtained here. The state law allows municipalities to collect a surcharge on the permit fee for verifying the RRP certification. Officials from the Minnesota Department of Labor and Industry say their agency will be empowered under this new law to enforce the requirement that local permitting officials verify RRP certification through administrative action and to do enforcement generally against state licensed contractors who do not comply with the RRP Rule. The state will have authority to issue warnings, levy financial penalties, and even suspend or revoke the licenses of state-licensed building firms that fail to maintain their RRP certification. There are 15,000 such firms, although only those who work in pre-1978 homes are required to have the RRP certification. Minnesota’s state health department reportedly is close to receiving delegated authority to fully administer the RRP Rule.

These new and emerging city-level policies break new ground with mainstreaming lead safety in renovation and maintenance of older housing – an approach made much easier by the arrival of the RRP Rule at long last. By joining the existing set of stakeholders working to protect children, workers and others against lead paint hazards, permitting and code agencies can help bring about about a dramatic improvement in contractor and worker knowledge and practice in jobs involving lead paint disturbance – and may contribute to significant reductions in lead contamination and lead exposure in the coming years.

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Lead-Safe List Comics – Painters

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Delay in Enforcing Firm and Individual Certification Requirements

The Renovation, Repair and Painting Regulation (the RRP Rule), which became effective on April 22, 2010, is intended to protect children and adults during renovation, repair and painting projects in pre-1978 “target housing” and in pre-1978 “child-occupied facilities” when lead-based paint will be affected by the work. The requirements are generally triggered when paint and other surface coatings, which have not previously been tested and found to be lead-free, are disturbed above certain “minor repair and maintenance activities” thresholds. While performing such renovation, repair and painting activities, certain lead-safe work practice standards must be met.

The US Environmental Protection Agency (EPA) issued the RRP Rule because a disturbing number of children are still poisoning by lead-based paint in their homes. According to 2008 EPA data, a sampling of 178 child elevated blood lead level cases revealed that 71 or approximately 40 percent of those cases arose directly out of renovation projects that created excessive levels of lead-contaminated dust and debris.

Any individuals or organizations, including sole proprietors, partnerships, corporations, associations, nonprofit organizations and even governmental agencies that perform renovation, repair and painting work in pre-1978 constructed housing and child-occupied facilities, such as daycare centers, must submit an application and fee to EPA to become “Certified Renovation Firms.” Also, individuals who work for Certified Renovation Firms must be properly trained by EPA-accredited training providers as “Certified Renovators” or be trained in lead-safe work practices and be supervised on the job by the firms’ Certified Renovators.

Because concerns have been raised regarding difficulties experienced in obtaining the required Firm certification from EPA, and finding and taking Certified Renovator training courses, EPA announced the following on June 18, 2010:

• It will not initiate enforcement actions for violations of the RRP Rule’s Firm certification requirement until October 1, 2010. (Please note that under the RRP Rule, EPA has up to 90 days to respond to applications for Firm certification. The Agency has typically taken 45 to 90 days to process these applications.)

• It will not enforce against individual renovation workers who apply for enrollment or who are enrolled in a Certified Renovator training class by September 30, 2010, so long as the training is completed by December 31, 2010.

However, all other provisions and requirements within the RRP Rule remain fully effective and enforceable. EPA will initiate enforcement actions against renovation firms and individuals who do not comply with the lead-safe work practice requirements. Additionally, firms are responsible for complying with the RRP Rule’s pre-renovation education requirements, which include the distribution of an EPA pamphlet, Renovate Right, by firms before beginning each covered renovation, repair or painting project. Firms are also responsible for complying with the associated record keeping requirements.

According to EPA, as of July 1, 2010, over 40,000 firms had applied to the agency and received their Firm certification. Also, as of July 1, 2010, over 365,000 individuals had been trained as Certified Renovators by EPA-accredited training providers.

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In response to: “NAHB to Sue EPA over Lead Paint Regulations”

We became a certified firm in April of this year, and as a result, we have been receiving referrals from many of the HUD and local housing agencies because we are among the dozen or so firms actually certified in our area.

We have discovered that the majority of Section 8 landlords prefer to evict their renters and remove their rental properties from the HUD housing programs rather than pay the additional costs of Lead Safe practices required by both HUD and the EPA. Without an increased subsidy from HUD, most of these landlords who were willing to provide low income housing simply cannot or will not absorb the additional costs of compliance with the new EPA rules. The net result of this regulation that was designed to protect pregnant women and children under 6, is a loss of low-income housing in our area. Since many of our low-income community members are often young families with small children, this rule is in effect creating more homeless families.

We have emphasized the fact that the new EPA rules apply to ALL homes built before 1978, regardless of the HUD subsidy programs, but most Section 8 landlords that we have provided estimates for have stated they would rather get renters into their properties who can afford the local market rental rates to at least defray the costs of compliance.

My initial exasperation over the EPA’s timing of these new Rules to coincide with the worst recession in nearly a century, has given way to resentment and disgust. Only a Government could create a system of regulations so outrageous and badly thought out as to result in the homelessness of even more pregnant women and small children, the very people they wanted to protect.

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Lead-Based Paint RRP Rule-Update-EPA Delays Fine

Word came from the Environmental Protection Agency that the EPA will not be enforcing the certification requirement until October 1, 2010.  What does this mean for contractors?  You still need to follow the lead-safe practices, hand out the Lead-Safe booklet, etc.  Contractors will have to be enrolled in a certified renovator class by September 30, 2010, and must have completed the training by December 31, 2010.

Here is the link to the memorandum:

http://www.dealer.org/files/EPA_Delay_Announcement_6_18_10.pdf

This memorandum was sent in recognition of the fact that contractors have had difficulty finding open slots in the training classes.  That said, contractor still need to be familiar with the rule and continue to follow the correct procedures when disturbing lead paint in pre-1978 homes.

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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.

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Opting-Out of the Lead Paint Law is not an Option

Today I had a spirited debate on a NARI listserve about the Opt-Out provision of the RRP Rule. As others pointed out, the Opt-Out provision will be in effect for sixty days. As the EPA stated on its website:

“Q. Will EPA issue a final rule removing the opt-out and if it does when will the rule become effective?

As of April 22, 2010, EPA has issued a rule revoking the opt-out provision of the 2008 Lead RRP rule. EPA expects this rule to publish in the Federal Register within 2 weeks and anticipates that it will take effect 60 days after publication.”

So, here is the reality of the situation. If you are going to do a renovation that will be completed before 60 days from now, I suppose you could theoretically have a homeowner who does not have children under 6 or pregnant women at the premises sign an opt-out clause and avoid using the lead-safe practices. However, what if the project runs over? Does it make sense to have a job going on where the procedures have not been followed and run the risk of being sued for lead poisoning?

There is a campaign starting to make homeowners more aware of the RRP rule now that it is in effect. People are going to worry more about lead poisoning and people will be inclined to have their blood tested for lead. If you are sued for lead poisoning, you will have to hire a lawyer and defend yourself and/or your company. The situation will be that much more murky if you start using the lead-safe practices 60 days from publication of the law revoking the Opt-Out.

I am going to take a stand and suggest that all firms should follow the lead safe practices no matter what. Better safe than sorry.

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