Updates on MA RRP Rule From The MA Department of Labor Standards

As EPA amends the RRP rule, renovators working in states that have taken over the rule from EPA need to know if and how these states incorporate the changes into their own rule.   Yesterday I inquired with the State of Massachusetts to find out about a few recent amendments and changes.

One of the good things about the state of Massachusetts taking over the RRP rule is that communications with the Department of Labor Standards (DLS) is much easier and much quicker than trying to get answers from EPA.  I also find their staff is much more informed and always helpful.  The Q&A below was conducted completely via email (I sent the questions out of the blue) and I got a complete and what I would call an intuitive response in less than 4 hours!  Credit to the DLS!

Here is the Q&A

Question: Can you tell me if MA allows the lead safe renovation supervisor to take paint chip samples same as EPA does?

DLS Answer: Massachusetts incorporates the federal protocol by reference in our regulation. LSR Supervisors are authorized to sample painted surfaces in accordance with their training.  Of course, they must do adequate sampling for different painting histories of surfaces, document their findings, maintain records of testing and provide documentation to the property owner as required.

Question: Does MA require that the firm provide the renovation checklist to owners and tenants within 30 days of completion of final billing, whichever comes first (just like EPA)?

DLS Answer: Yes. DLS has the same documentation requirements as the federal rule.

Question:  EPA requires towns and municipalities to become certified firms and have Certified Renovators before doing their own RRP work on town properties that are target housing and or Child Occupied Facilities.   They can however hire out the work to a Certified Firm and therefore would not need to be a Certified Firm if the work is hired out to one.  Does the Massachusetts law follow the same requirements?

DLS Answer:  Yes. Massachusetts mirrors the requirement but offers the opportunity for the fee to be waived for property owners with trained employees working on their own properties.

You can find them listed on our LSRC list published on the DLS web pages.

Question: Also, does MA now recognize LeadCheck for Drywall and Plaster?

DLS Answer: Yes.  But as usual, there is a caveat which is also applicable at the federal level.  When the trained individual takes a sample – s/he must follow the prescribed protocols.  In order to take advantage of the new approval; they must follow the new testing methods and adequately test surfaces.  In some cases, many samples must be taken in order to effectively disclude the work under the rule.

Training Providers will likely being teaching the new methods, however, those who were previously trained will need to justify that they know how to sample in order to validate their findings.  Of course, the safest path is to presume the presence of lead.

Question: Any other updates or clarifications I should know about?

DLS Answer: I know you are aware that DLS has been doing enforcement and civil penalties.  We are still interested to have the regulated community provide us feedback to provide better regulations.  I don’t have a specific date but we will certainly let you know when we are going back to public hearings to update our regulation.

Its spring and we are in the field doing compliance checks.

EPA Report Card:  How well are they doing with the RRP Rule?

Many news outlets and politicians have been using report card scores to express how well they think people, government policies and regulations are performing.   Several politicians, government employees and even our president have provided their own self assessment scores as well.  It is almost two years now since the EPA RRP Rule went into effect.   I thought I would offer my own report card on how I think the EPA has performed so far in four areas regarding the RRP Rule.  EPA is welcome to offer their own self assessment score.

Subject: Outreach about the rule

EPA has claimed to have done extensive outreach to consumers and the regulated community.  They list a variety of methods used and places where ads and announcements were placed.  

Report Card Score: D-

In reality what they have done has not been effective.  Either the message is not effective, the placement is not effective or both.  According to a survey done by Professional Remodeler magazine 65% of remodelers surveyed estimated that less than 10% of their potential clients are aware of the rule.  Only 5 percent think more than half of homeowners know about it.

On a recent webinar with EPA Officials Regarding RRP Public Awareness and Enforcement Efforts hosted by NCHH, I asked EPA officials if they were doing any tracking to check the actual effectiveness of their outreach efforts.  They are not.  Essentially the answer was that EPA is not a professional marketing organization and has no way of tracking results.   But they said they will be doing more outreach…

Subject: Getting Firms Certified

EPA requires all firms doing renovation, repair and painting work on homes built prior to 1978 become EPA Certified Firms before performing or offering to perform such work.

Report Card Score: F

Before the rule rule came into effect EPA stated; "There are approximately 211,000 firms estimated to become certified to engage in renovation, repair, or painting activities." As of posting this blog EPA’s web site claims that EPA has certified 97,746 firms (118,885 firms including those approved by authorized states).  According to a report by the Joint Center for Housing Studies at Harvard University, the most recent government census showed more than 650,000 businesses received a majority of their revenue by providing remodeling services in 2007 and that number does not include the large number of part-time, semi-retired, and “moonlighting” contractors reporting gross revenues of less than $25,000.   I think we also know there are many illegally operating contractors as well that did not make it into the census count. 

Admittedly not all remodeling companies work on pre-1978 homes.  However, there are many other business types other than remodelers who disturb lead paint.  One example is exterminators.  According to Exterminator.com there are over 20,000 extermination companies in the US.  Others who would need to become certified include landlords, property management firms, banks that own foreclosed properties, housing authorities, cities/towns and municipalities. (According to Google answers there are 18,443 cities, towns, villages, and other such governing groups in the United States, not including any island areas other than Puerto Rico) I am sure you could list other business and entity types that would fall under the rule.  My best guess is that EPA has only certified about 10% of the firms that should be certified and has completely misjudge the number of firms affected by this rule.

As a side note, I contacted EPA to find out how many workers have become Certified Renovators so far.  I was told they are still trying to decide how to count them…

Subject: Enforcement

There are 12 states that have taken over the rule so far.  That leaves 38 states plus American Samoa, District of Columbia, Guam, US Virgin Islands and Puerto Rico under administration and enforcement by EPA. 

Report Card Score: F

So far EPA has only published one violation since the rule came into effect in April of 2010.  On the other hand the state of Massachusetts took over the rule in July of 2012 and has published over 20 violation enforcements to date.

Though not confirmable facts, one commenter on a LinkedIn discussion claimed “there are only 37 Certified Firms in Maui County when there are 1,500+ Licensed Contractors and double to triple unlicensed contractors”.

Industry insiders report EPA has been doing RRP investigations.  EPA claims we will hear more about violations and enforcement very soon.

Subject: Protecting children and others from lead poisoning due to renovations

 “The purpose of the Renovation, Repair, and Painting (RRP) Rule is to minimize exposure from lead-based paint dust during renovation, repair, or painting activities. This is a key effort in reducing the prevalence of childhood lead poisoning, particularly lead poisoning caused by housing contaminated by renovation activities. This will also minimize exposure to older children and adults who are also adversely impacted by lead-based paint dust exposure.”  (From EPA Web site)  

Report Card Score: Incomplete

It is a fact that lead is poisonous and RRP activities can cause poisoning. However, EPA does not know how many children were actually poisoned by RRP activities before the rule came into effect.  If you check any of the data it refers to RRP activities as the “likely source” of lead poisoning, not “the cause”.   That being the case, EPA has no way to know if the RRP rule is making a difference or not.  It is ‘likely” that it is helping.  But, without knowing where EPA started and where we are now that the rule has been in place for almost a year, EPA has no idea if what they have been doing is effective enough and or if or where it can improve effectiveness within the rule. 

Unfortunately, the rule may also be causing more children to be poisoned than before the rule came into effect, because of EPA's inability to adequately enforce it.  As reported in this press release, to keep costs down, consumers are hiring non-certified firms to work on their homes and the required lead safe-practices are not being used.  Also, contractors are reporting that some realtors and insurance adjusters are falsely telling consumers that the rule does not apply at their homes based on location and or for the work they are having done.  All of this has fostered an underground economy of contractors taking advantage of purposely ignoring the rule to keep prices down and improve their ability to sell jobs.

How do you think EPA has been doing with the RRP Rule so far?  Consider using the comment area below to offer your own subjects and report card scores.

Opportunity to Discuss RRP Rule with MA and EPA Officials

The RRP Rule has certainly changed the game for remodelers and remodeling consumers.   I have met with EPA officials in the past to discuss challenges within the rule itself and the challenges created by EPA for those business that are abiding by the rule due to the lack of any serious enforcement to date against violators.  So far, trying to work with EPA has been very frustrating.   Little has been accomplished.  As a result, the underground economy in remodeling has grown, making it difficult for legitimate businesses to compete against it.  This is also in effect poisoning more children as home owners choose to hire non-certified workers who are not using lead-safe practices and or are doing the work themselves without the use of lead-safe practices

On the other hand, since taking over the RRP Rule in MA, working with MA state officials has been much more productive. The Massachusetts Department of Labor Standards (DLS), formally called the Massachusetts Division of Occupational Safety, under the leadership of the department's Director Heather Rowe, has been very receptive to meeting with concerned stakeholders, hearing and recognizing stakeholder's concerns, and working with stakeholders to address their concerns.  Currently, in addition to working on amendments to the RRP regulations in MA to address concerns, the DLS is also finalizing their plans to step up enforcement and compliance actions this spring as the home improvement season begins.  Is it happening as fast as we all might like, no.   However, based on budget and resource realities, I think DLS is doing a good job listening and prioritizing their efforts.

As one way to continue their efforts and interact with stakeholders, the Massachusetts Department of Labor Standards is looking for additional input from contractors and lead industry practitioners in anticipation of making amendments to the MA RRP regulations. An official from this agency will be participating in a May 18 workshop on the RRP Rule being held in Marlborough, MA sponsored by the Lead and Environmental Hazards Association (LEHA) and will be discussing the Department’s plans for revising the RRP regulations as well as the Department's enforcement efforts.

Also participating in the workshop will be a representative from the MA Department of Health's CLPPP office who will discuss the differences between deleading authorization/licensing and RRP certification, as well as a representative from the EPA Office of Pollution Prevention and Toxics - the agency responsible for EPA’s implementation of the RRP Rule. 

Joining the MA and EPA officials will be industry specialists, including myself and public agency representatives from CT, MA, RI and VT who will address:

 -  How the Prescribed Work Practices are stifling innovation, lead by Shawn McCadden  (Read this for more on this topic)
 -  Variations between RRP, Federal/State Work Practices, OSHA Worker Safety Rules
 -  Promotion and Enforcement Strategies, Including the Use of Building Permits 
 -  Delegation of the RRP Rule by New England States

If you are interested in attending the one-day workshop, go to www.rrprule.com for complete agenda, location and registration details.  I hope I will see you there.

CCB Reminds Contractors of the Lead-Based Paint Safety Requirements in Oregon

Note: The following information was found on the CCBlog of the Oregon Construction Contractors Board (CCB)

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Landlords Need To Be Aware Of The Recent EPA RRP Rules

Being a landlord brings with it many legal responsibilities related to lead paint that, if not followed, can certainly eat away at any potential profits.  There are many rules to consider and be aware of, the most common being the lead disclosure rules.  Federal rules are one thing, but different rules in different states and different cities can make it quite difficult for landlords to be confident they are complying.  Ignorance of the rules is not an excuse. 

Lead disclosure related rules effecting landlords have been around for some time now.  Still, many landlords are not aware of them and even many who are aware have been getting away with ignoring them.  The EPA typically only proactively audits “bigger fish”, like large apartment complex owners, rather than landlords with fewer properties.  However, when tenants complain about or sue a landlord, their lawyers will often also use lead disclosure compliance as an additional weapon in their arsenal.  Now there is a new weapon tenants and their lawyers can use as well.

Many landlords are not aware of the new RRP Lead rule which must be followed when repairs, renovations, painting and or maintenance is done on their rental properties.   In addition to certain required lead-safe work practices, the RRP rule also includes building occupant notification requirements.  These requirements must be met when working in a tenant’s unit and or if work is to be done in common areas on or in the rental property.  The rule requires that tenants be made aware of the work to be done and where it will be done in advance of starting the work.   Click here to access a list of short videos explaining the RRP Rule.

When work is done inside their units, tenants must be given an EPA published pamphlet titled “Renovate Right”.  The pamphlet explains the dangers of lead and what is required to protect their and their family’s health and safety when work is being done at the property where they live.  If work is to be done in common areas, the pamphlet can either be given to tenants, or, notices can be posted telling tenants how they can receive the pamphlet at no cost to them.   Tenants must also be given or made aware how they can request a document titled the “Renovation Checklist”.  The checklist documents the work done and the lead safe work practices used to do the work.  Under the rule the landlord must maintain documentation proving these and other requirements were met.

If the landlord does his own work on the rental property and or uses his/her own employees to do so, the landlord must also become an EPA Certified RRP firm and only use trained and certified workers to do the work.  If you are a landlord doing your own work, click here to see the list of documentation you are required to create and store.  If the landlord hires a contractor to do the work, the landlord does not need to be certified, but the contractor doing the work does.  If a contractor does the work, the landlord is responsible to obtain from the contractor and store all documentation required under the rule. For violations of the RRP rules landlords can be fined up to $37,500 per day, per violation. 

***Keep in mind that the RRP fines will be in addition to any fines related to disclosure rules.

Some states have taken over administration and enforcement of the rule from EPA.  Make sure you know what specific rules apply to your situation depending on where the property is located.  Click here to see a list of states that have taken over the rule.  If you are a landlord seeking more information about the RRP rule use the tags on the right side of this page to help you find specific information and topics.   Be sure to subscribe to this page if you would like to receive e-mail notification of new posting related to the RRP rule as they happen.  Feel free to share this information with others.

NOTE: If you are a landlord, realtor or member of a group representing landlords or realtors seeking help and information about the RRP rules, feel free to contact Shawn McCadden for assistance.  Shawn offers consulting services and informational seminars related to the RRP rule for landlords, realtors and other affected parties.

City Officials Drop The Ball On RRP Rule.  Will City of Racine WI Be Fined?

In a September 20, 2010 article by the Racine Post in Wisconsin, the on-line news web site provides a very in-depth report about RRP violations on city financed and managed renovation projects.   The article serves to demonstrate and validate the challenges law abiding and conscientious businesses have when trying to work within the RRP rule.  A combination of illegally operating contractor competition as well as ineffective, under-funded and or non-existent enforcement has made earning a living challenging for legitimate business owners as well as the employees who work for these businesses.

Wisconsin is one of the states that has assumed administration and enforcement of the EPA RRP Rule.  The article reports that Bill Bielefeldt alerted the Wisconsin State Department of Health Services about unsafe lead practices on city-owned homes.  Racine's Neighborhood Stabilization Program (NSP) is designed to renovate and sell rundown homes in foreclosure. The article includes a photo gallery of pictures showing a variety of violations at the projects being managed by the city.

Bill Bielefeldt is a housing technician for the city of Racine. He received an award from the Wisconsin Rental Housing Legislative Council for his work on lead-safe practices. (Photo by Racine Post)

Bielefeldt claims the city program meant to improve neighborhoods may be endangering children.  "It's embarrassing that the city isn't following its own rules and concerns", Bielefeldt said.  "I would be just as much at fault as they are if I didn't report that," he said. "I didn't just go blindside them. I told them about this, and they chose not to do anything."

Now, the city is facing major violations for creating potentially hazardous conditions. The city's response to Bielefeldt?  The Racine Post reports the city sent two uniformed police officers to Bielefeldt's Mount Pleasant home just before midnight on Sept. 17 to deliver a letter saying Bielefeldt was prohibited from all of the city's NSP sites.

Here's the letter the city delivered to Bielefeldt just before midnight:

Mr. Bielefeldt;                                               
It has come to my attention that you have been on city-owned property without authorization.  Pursuant to your suspension of employment beginning September 10, 2010, you have been relieved of your duties as a Housing Technician as of that date.  Be advised that You are not to enter any city-owned property under the control of this department, including but certainly not limited to any homes that are now or are in the future in the Neighborhood Stabilization Program.

Further, you are not to contact any property owners participating in the city's loan program or any related programs, such as downpayment assistance, and you shall not represent yourself as a current City of Racine employee during the course of your suspension and/or upon termination.  As was said to you on September 10, 2010, any requests for information from this department must be made directly to me for response.

 Failure to comply will result in the city seeking all civil and criminal remedies available to it.
                                                                                                                                            
 Signed,
    
 Brian F. O'Connell
 Director of City Development

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I predict we will hear many more stories similar to this one as more contractors become frustrated with illegal completion and the public becomes aware of the dangers of lead paint as well as how the RRP rule will affect them and renovations at their homes.
 

What States Have Taken Over Administration and Enforcement of The EPA RRP Rule?

Note:  This post was updated on 2/28/12 to reflect information available at that time.

The National Center for Health Housing (NCHH) maintains a list tracking the status of RRP for all 50 states to help renovators and training providers.  The list includes key links and highlights of rule status for each state as well as American Samoa, Guam, Puerto Rico, U.S Virgin Islands.

As of this post (updated on 2/28/12), the following states are either exploring adoption, are in process or are pending adoption of an RRP rule: District of Columbia,  Illinois, Michigan, Minnesota, Missouri, Tennessee, Virginia, California

The following information can be found at the EPA web site.  This information was current as of 2/28/12.  Click here to check the EPA web site for the most current information.

EPA Authorized State Programs

EPA has the authority to authorize states, tribes and territories to administer their own RRP program that would operate in lieu of the EPA RRP regulations. When a state, tribe or territory becomes authorized, contractors and training providers working in these areas and consumers living there should contact the appropriate state, tribal or territorial program office.

The following states have been authorized by EPA: Alabama, Georgia, Iowa, Kansas, Massachusetts, Mississippi, North Carolina, Oregon, Rhode Island, Utah, Washington, and Wisconsin.

Information for States and Tribes

EPA headquarters has developed guidance documents to assist states and tribes that are applying to EPA for authorization to manage their own lead renovation, repair and painting programs (PDF) (122 pp, 257K).

Delegated States Likely Better Prepared To Enforce EPA RRP Rule

Several states around the country have assumed administration and enforcement of the EPA RRP rule and others are also thinking of doing the same.  EPA actually offers money for the states to use to investigate the practicality of doing so.  As this happens each state must create its own rule which is at least as strict as the EPA rule in order to get approval to do so from the EPA.  This will lead to confusion for many renovators. 

Variances in the rule requirements, from the EPA RRP rule and also from state to state, will make it difficult for renovators to understand the differences and keep up with amendments made by each entity.  Renovators working in more than one state many have to become certified firms in each state they operate in and or also with the EPA.  Are renovators better off if their states write a better thought out rule?  Would renovators be better served if there was just one well written rule for everyone to follow?   I predict that confusion may likely contribute to violations and fines for these renovators. 

In July of this year Massachusetts took over administration and enforcement of the RRP rule.  The Massachusetts Regulations, written by the Massachusetts Department of Occupational Safety (DOS), include many of the OSHA related considerations left out of the EPA RRP rule and the EPA required certified renovator training.   As a result, Massachusetts contractors are quickly becoming aware of the already existing OSHA considerations related to working with lead.  For example, the Massachusetts firm licensing application includes a requirement that a written respiratory protection and worker health and safety program evidencing compliance with the Massachusetts RRP rule and OSHA medical monitoring requirements be submitted with the application.  This will force businesses to have such a program in place before they can be licensed to do RRP work.   The requirement will also serve to dictate what the business must have in place should they be inspected by either the DOS or OSHA.   I predict the need for OSHA related training will increase dramatically as contractors become aware of violations and fines levied against their peers.

The MA DOS has also started conducting on-site inspections.  Though most inspections are triggered by citizens reporting suspected violations, the DOS is also out in the field and is stopping by renovation projects as they come across them.   In one of his recent blogs, RRP certification training provider and business coach, Mark Paskell of The Contractor Coaching Partnership, shares a real life story of a painter who was visited by DOS after a neighbor next door to one of his projects called the DOS with concerns about soil contamination.  The contractor was in compliance and made out fine, but the DOS left him with a message and asked that he would share it with others.  "Tell every contractor you know we're out there enforcing. Tell your friends, your neighbors, other contractors you know, suppliers and trades. We are here and we will enforce the new law"

NOTE: EPA has authorized nine states to administer their own RRP programs: Iowa, Kansas, Massachusetts, Mississippi, North Carolina, Oregon, Rhode Island, Utah and Wisconsin.