About the RRP Rule

Lead-Based Paint Renovation, Repair and Painting Program Rule

By Andrea Goldman

The new Renovation, Repair and Painting Program went into effect on April 22, 2010. Contractors are scrambling to become certified and make themselves familiar with the law’s requirements. It is my responsibility to read the law and try to predict where the legal issues will arise so that construction companies can protect themselves.

The first question is, in which situations does the Lead-Based Paint Renovation, Repair and Painting Program Rule apply?  The law applies to all pre-1978 homes where interiors with more than 6 sq. ft. of painted surface or 20 sq. ft. of exterior painted surface will be disturbed.  Although an Opt-Out provision used to apply to homes where pregnant women or children under 6 did not reside, that option is expiring as of July 6, 2010.

The Rule does not apply to those who are not doing work for compensation, so homeowners renovating their own homes are exempt.  It does not apply to post-1978 buildings, new construction or emergency renovations It also would not cover minor repairs or work that does not disturb painted surfaces. Contractors need to be careful however, because they cannot simply rely on homeowner assurances that the home was built after 1978 if there seems to be evidence to the contrary.

An interesting aspect of the Rule is that the containment procedures do not require or even encourage lead testing.  Although lead testing can be requested by the homeowners, my understanding is that the ramifications of having high lead levels documented in one’s home can be far-reaching, including being required to perform a complete abatement, having trouble obtaining a mortgage, and issues regarding disclosure when selling the home.

Contractors should do some due diligence of their own and document all steps taken in order to stay in compliance with the law.  If the work is going to be done on a post 1978 home, the contractor will want to obtain independent confirmation from the town or registry of deeds that the house was really built at that time.

Contractors should also be aware that there are activities which are absolutely prohibited.  They are as follows:

The final rule prohibits or restricts the use of certain work practices during regulated renovations. These practices are open flame burning or torching of lead-based paint; the use of machines that remove lead-based paint through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting, unless such machines are used with HEPA exhaust control; and operating a heat gun above 1100 degrees Fahrenheit. These are essentially the same practices as are currently prohibited or restricted under the Lead-based Paint Activities Regulations, 40 CFR 745.227(e)(6), with the exception of dry hand scraping of lead-based paint. While this final rule and EPA’s Lead-Based Paint Activities Regulations do not prohibit or restrict the use of volatile paint strippers or other hazardous substances to remove paint, the use of these substances are prohibited for use in poorly ventilated areas by HUD’s Lead Safe Housing Rule and they are regulated by OSHA.

What must contractors do in order to become registered as a certified firm?

In order for a General Contractor to work on a renovation project at Target Housing, the contractor must apply for firm certification.  Given that the law went into effect on April 22, 2010 and the EPA has up to 90 days after receiving a complete request for certification to approve or disapprove the application, all firms intending to do renovations should apply now so they will not be faced with having to cease work if certification is not received in a timely fashion.  The fee for certification is $300.00 in Massachusetts.

The certified firm has to maintain documentation of the lead containment procedures for three years.  Another amendment took effect on July 6, 2010 requiring that contractors present the homeowner with the lead-safe documentation within thirty days of the completion of the renovation or upon final invoice, whichever is sooner.  Renovators learn documentation methods at the certified renovator trainings.  Contractors can use the Sample Recordkeeping Checklist http://www.epa.gov/lead/pubs/samplechecklist.pdf for this purpose. It is not possible for a firm to contract away liability for maintaining the proper records as required by the Environmental Protection Agency.  It is highly recommended that General Contractors only hire subcontractors who are also certified firms.

What is involved in becoming a certified renovator?  The certified renovator is responsible for seeing that the containment procedures are followed.  He or she has to be on site at three stages of the project: when signs are posted, when the work-area containment is being established and when the post-renovation cleaning verification is performed.  The certified renovator must be reachable by cell phone at all other times.  In addition, anyone who works at the site who will be disturbing lead paint must receive on the job training (OJT) for their particular duty that is compliant with the requirements of the rule.  The certified firm will need to be prepared to demonstrate the type of training that the workers have received for their particular task.

The actual training is being offered by a number of different trainers that have been certified by the EPA.  One can find a list of certified trainers by going to the EPA’s website.  The cost of the training ranges from approximately $100-300.00.  The training consists of eight-hour training with a test at the end.  It teaches the lead containment procedures (sealing off the room with plastic, using a HEPA vacuum to clean up at the end of the day, etc.) as well as how to coordinate the work most effectively and maintain proper documentation.  Those who are grandfathered in from a previous lead training will have to do a four hour-training.  The EPA recently extended the deadline for enrolling in a training until September 30, 2010 and they will start taking action against those who have not enrolled by that time as of October 1, 2010.  However, all contractors who disturb the requisite amount of lead paint must still follow all of the lead-safe procedures now.

Once a firm is certified and it has trained its workers, it has taken almost all of the necessary steps to stay in compliance with the Lead-Based Paint Renovation, Repair and Painting Program Rule.  A contractor should try to protect himself as much as possible from potential claims against him for lead paint injury.  One way to protect oneself is by inserting clauses into contracts that address the lead paint law.  With homeowners, the contractor will want the homeowner to acknowledge he has received the information booklet, that the firm has shown the homeowner its certification, enquired whether there are children under six or pregnant women at the premises (so the contractor can demonstrate to the homeowner that he is aware of the dangers of lead), and whether any children in the house have tested positive for high lead levels.  General contractors will want indemnification clauses where their subs will pay for the costs of defense for any claims brought as a result of the subcontractor’s work.  They should also make payment contingent upon following the lead containment procedures and maintaining proper documentation.  Contractors are advised to consult with their insurance provider to determine whether they have lead coverage under their current policies or whether they should purchase pollution insurance.

The EPA has quite a bit of helpful information on its website:

http://www.epa.gov/lead/pubs/renovation.htm

Finally, Massachusetts has already published emergency regulations 454 CMR 22.00 that replaced the EPA RRP Rule in Massachusetts on July 9, 2010.  The Division of Occupational Safety has taken over enforcement of the law.  Now contractors will have to adapt to these rules.

Andrea Goldman is the principal in the Law Office of Andrea Goldman, 305 Walnut Street, Newton, Massachusetts 02460.  She is a litigator, mediator and arbitrator.  Ms. Goldman focuses on construction, contractor/homeowner and business law.  She is fluent in Spanish and French and has served international clients in their native language.  For more information about Andrea Goldman visit www.andreagoldmanlaw.com, or call (617) 467-3072.

Share

Leave a Reply