Are you certified to work on residential property containing lead paint? Are your subcontractors? If not, any work you perform on such properties built before 1978 could subject you to five-digit fines.
Is lead paint really that big of a deal? In 1991, the Secretary of the Department of Health and Human Services called lead the "number one environmental threat to the health of children in the United States.” In part, as a result of a court case against the Lead Industries Association, the first regulations regarding lead-based paint were later enacted in 1996. In 2008, under the authority of the Toxic Substances Control Act, the Environmental Protection Agency (“EPA”) enacted additional regulations expanding the lead paint rules to govern the renovation of residential housing and child-occupied buildings built before 1978 (the “RRP Rule”).
Activities performed by many construction trades can disturb lead-based paint and have the potential to create hazardous lead dust. Under the RRP Rule, contractors performing renovation, repair and painting projects that disturb lead-based coatings (including lead paint, shellac or varnish) in “child-occupied facilities” built before 1978 must be certified and must follow specific work practices to prevent lead contamination.
Some basic math skills are helpful when navigating the lead paint laws:
- The U.S. government defines "lead-based paint" as any "paint or surface coating that contains lead equal to or exceeding one milligram per square centimeter (1.0 mg/cm2) or 0.5% by weight.”
- “Child-occupied facility’’ means “a building, or portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day’s visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours.” In addition to residential apartments and homes, “child-occupied facilities” can include day care centers, preschools and classrooms.
- Flooring contractors could be affected if more than six square feet of lead-painted areas are disturbed. This would typically include baseboards, in which case 32 linear feet of 2¼” baseboard would make the law apply.
- The year the property was built can suggest the likelihood of whether lead-based paint is present. Properties built within the following time frames have the corresponding percentage chance of containing lead paint:
- Built before 1940: 87%
- Built between 1940 and 1960: 69%
- Built between 1960 and 1978: 24%
- Built after 1978: Unlikely to contain lead-based paint.
Despite the interesting probabilities listed in the last example, there is no subjectivity involved in determining whether the RRP Rule applies. Even though only 24% of houses built between 1960 and 1978 likely contain lead paint, the RRP Rule must be strictly followed for all properties that qualify as child-occupied facilities. Also note that while the RRP Rule originally allowed a property owner to waive compliance by “opting-out” and stating that the property was not a child-occupied facility, the EPA quickly abolished that option because of the high potential for dishonesty. If you are still using a lead paint disclosure form containing a section allowing the customer to “opt out,” your form is outdated.
Residential contractors also need their calculators to add up the increased costs for training and education, establishing dust containment methods (such as sealing off doorways and HVAC ducts with plastic), properly disposing of materials, and testing for “dust clearance” at the end of the project. A number of national trade associations outraged by these additional costs have opposed the RRP Rule and have even sued the EPA (without success).
The importance of contractors understanding and complying with the RRP Rule cannot be understated. The EPA aggressively enforces the RRP Rule, and earlier this year announced enforcement actions against 35 home renovation contractors.
- In one case, a Kansas contractor who worked on a vacant apartment building built in 1922 incurred total civil penalties and costs of over $27,000. I question how a vacant property qualified as a “child-occupied facility” but I assume the EPA asserted that children would “regularly visit” there in the future.
- In another recent case, a contractor working for the Alaska Department of Administration on the state governor's house was fined $32,130 for failure to have the proper EPA certification and failure to hire EPA certified subcontractors. One would think the State of Alaska might have verified whether it was hiring an EPA-certified contractor to work on the governor’s house, but this further illustrates that additional lead paint education is required.
Keep in mind that common sense is not the yardstick for measuring if the RRP Rule applies. I recently represented a wood flooring contractor installing new wood floors in a house built in 1968. The contractor ripped up carpet that had been installed in 2003 and threw it in the construction dumpster, only to be tagged by a building inspector for failing to properly dispose of it. The contractor objected, noting that the carpet was installed in 2003 and therefore could not possibly be affected by lead paint. The inspector said that even though the carpet was from 2003, it had been sitting in a 1968 house where lead paint flakes could have fallen on and contaminated the carpet. Therefore, the contractor needed to be certified and properly dispose of the carpet per the EPA guidelines. Luckily for my client it was the local building inspector that flagged the issue and not the EPA.
As a refresher, all contractors working on “child-occupied buildings” built before 1978 should do the following:
- Attend an EPA Lead Renovation Class: Become certified in lead-safe work practices by attending an EPA-accredited training program.
- Apply for Certification.
- Provide Customer With “Renovate Right” Pamphlet: For pre-1978 properties, give customers a copy of the EPA “Renovate Right” pamphlet.
- Obtain a Receipt Showing the Customer Received the Pamphlet. EPA regulations required you to keep a copy of the receipt for your records.
- Perform the Lead-Safe Test: Determine if lead paint is present. Test flooring finishes, baseboards, and shoe moldings. The EPA’s web site has information on acceptable lead-testing kits at: http://www.epa.gov/lead/pubs/pubs/kits.htm
- If Lead Is Present: Before starting any work, tell the customer about the presence of the lead paint, the required procedures, and the related costs. Note that you may choose not to perform the lead paint renovation or repair work.
- Contact Your Insurance Agent: Determine if you need additional liability insurance to cover lead paint renovation and repair work.
- Keep Your Calculator Handy: But use it to calculate your additional overhead for compliance, or else you later might be adding up your fines and penalties. While the costs of training and compliance are not insignificant, too many contractors have learned the hard way that the costs of enforcement actions are far more expensive.
Virtually all relevant information about lead paint certification and abatement can be found on the EPA’s website at www.epa.gov.