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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