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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