Don’t Be Mislead By the Vote to Cut Off RRP Enforcement Funding

On July 13, 2011 the House Appropriations Committee voted to cut off funding for enforcement of the RRP Rule until a reliable test kit is recognized by EPA.  The amendment was included in the House Appropriations Bill by Representative Denny Rehberg (R-Mont.).   

Note: For clarification, a “reliable test kit” means a test kit that would be able to determine if a painted or coated surface contains lead equal to or in excess of 1.0 milligrams per square centimeter (mg/cm2) or 0.5% by weight.   The current test kits will reliably indicate whether the surface contains any lead or not, but do not measure the amount of lead. 

Unfortunately, as a result of the vote many renovators are now assuming that they no longer need to comply with the RRP rule and do not have to use lead-safe work practices on pre-1978 target housing and child occupied facilities.  If you are a renovator making that assumption it would be a big mistake that could cost you big time.  Let me explain.

First, any cut or stoppage of enforcement would only apply to states where EPA administers and enforces the rule.  It would not have any effect at all in those states that have assumed administration and enforcement of the rule from EPA. 

Regarding the vote, it is an amendment added to a proposed bill which must go before the full House and Senate for approval.  Even if approved in the House and Senate it must then be sent to the president for his signature before passing.  The president signing it, at least in my opinion, is not very likely.  Obama had a lot to do with why the rule exists to begin with.

Even if the amendment to the rule were to go into effect, all it would do is take away the money EPA has to fund enforcement.  It would not eliminate the rule.   If and when a reliable test kit were to be eventually recognized by EPA, and finally made it to the marketplace, enforcement funding would then become available again.

EPA can eventually get you anyway:
Keep in mind that the rule requires that renovators keep all required documentation and that it be available for EPA audit for 3 years.   That means EPA can retroactively enforce the rule 3 years back.  If and when enforcement happens, all EPA needs to do is ask to see a renovators documentation to determine whether all the regulated work performed during that 3 year period was properly documented, met the rule’s requirements and that property owners and/or tenants received the required Renovate Right pamphlet, any lead testing results documentation as well as a copy of the required renovation checklist. Remember, the fine is up to $37,500 per violation per day!

Property Owners, Tenants and Parents can get you anytime:
Also, keep in mind that even if EPA can’t or doesn’t enforce the rule, your customers, their neighbors and the parents of children attending a child occupied facility can still sue you for not following the law.  And, as a business, if accused, you are considered guilty until you prove you and your business is innocent at your own expense, money you cannot recoup in court. 

Plus, one fact that many business owners may not be aware of is that, under the rule, the business owner can be held civilly liable for violating the rule.    Don’t assume you are personally protected just because of the legal status of your business.