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.

RRP Rule Could Be A Ticking Time Bomb For Many Contractors:

The New Renovation Repair and Painting Rule could likely be a ticking time bomb for many renovators who are ignorant of, intentionally ignoring and or not following all of the many requirements of the rule.   The reason I say this is because of the documentation and record keeping requirements of the RRP Rule.  Renovators should keep in mind that under the rule the required documentation for each RRP project must be stored and made available for inspection for up to 3 years after the completion of the project. The EPA and or states that have taken over administration and enforcement of the rule won’t be limited to finding active violations of the rule on jobsites.  They will also be able to use the required documentation to determine whether renovators were complying with the rule on all projects completed in the three years preceding an inspection.   Check out this list of six ways non-compliance and a lack of documentation could affect your business

I had a conversation with one remodeler about the serious risks non-compliance can have for a renovator’s business.  His opinion was that the risk of being caught was dependent on “how legal” the remodeler is in the way he/she operates the business.  My opinion is that being legal is not measured on any kind of graduated scale.   You are either operating the business legally or you are not.   I think both EPA and OSHA agree with this logic. 

In regards to RRP and OSHA compliance, either organization has the absolute ability to decide that you are in compliance or not.   If you are not in compliance you are guilty and subject to fines for all violations.   One saving grace, for those who are trying to be legal but may not be all the way there yet, is the fact that EPA has provided its enforcement officers with guidelines to determine fine amounts.  The Consolidated Enforcement Response and Penalty Policy (ERPP) sets forth guidance for EPA officials to use in determining the appropriate enforcement response and penalty amounts for violations resulting from failure or refusal to comply.  OSHA has similar guidelines for their field inspectors.

If you are looking for forms and signage to help you with comply with the EPA RRP rule, I recommend you check out what The Lead Paint Forms Store has to offer.   They offer a complete assortment of multi-part carbon forms, signage and checklists to assist you and your employees with RRP compliance

OSHA to Target Residential Construction Industry, Enforce Lead in Construction Standards

On December 2nd, 2010 I attended an OSHA Respirator and Worker Safety Programs Workshop put on by The Contractor Coaching Partnership and Safety Trainers.  The purpose of the workshop was to help contractors involved in RRP work with the OSHA requirements they needed to comply with when their employees or sub contractors are exposed to lead during construction activities.  Check this previous RRPedia article for more on OSHA requirements for RRP work and conflicts between OSHA regulations and the RRP rule.

At the workshop Joe Ceccarelli, a trainer with Safety Trainers, shared some information with the attendees regarding OSHA’s plans to step up inspections and increase fine amounts related to the residential construction Industry.  He told us that OSHA Region 1 has hire 250 new additional field inspectors and 40 of those have been assigned to Massachusetts alone.  I was quite taken back when Joe told us he had learned that 72% of OSHA violations levied against residential construction businesses were for what OSHA calls “serious or willful violations” and resulted in fines ranging from $3000 to $70,000.   

Joe told me he learned this information when he attended a session presented by Martha Kent, Region 1 area Director for OSHA, at the ASSE Region VIII New England Area Professional Development Conference and EXPO on November 30 – December 1, 2010 at the Sturbridge Host Hotel in Sturbridge, MA

In the video below Joe talks about what he learned at the conference and wanted to share with contractors.  Joe warns contractors; "They are coming, they are out there and they will be stopping by your jobsite"

RRP Work Can Be Risky if You Are Picking Up The Pieces After a Home Owner Does Their Own Work

In a recent RRPedia article titled “Most Children Poisoned by Lead during Renovations Poisoned by Their Parents”, One commenter posted the following the following comment and question:

“Shawn, this is actually something that I've been thinking about for some months now. As a handyman, I'm called upon to come in after a 'DIYer' has attempted and failed to complete a project. How are contractors supposed to protect themselves with the knowledge that anyone (especially kids) in the house could already have lead poisoning? It's kind of extreme, but do we need to have everyone in the home get tested before we sign a contract to begin repairing their repair work? It's troubling to say the least. There's no doubt that if homeowners were held to the same rules regarding the RRP, there would be more contractor work as they (the homeowners) would not want to go through all the protective measures. Thoughts?”

Scott Remsen

This is an excellent observation and question. The liability in such a situation is huge. I just recently had a conversation about this topic with an attorney well familiar with the RRP rule. Her suggestion was to consider asking the home owner to do testing of the occupants and perhaps even dust wipe testing at the home before beginning any work to establish a point of reference. Discussing this with and asking the home owner to do so would obviously be a sensitive conversation and could likely be a tough sell for many contractors.

In the video below Attorney Andrea Goldman discusses options renovators can consider if they are asked to do RRP work following behind a DIY Home Owner.  This video was filmed at a site where very large lead paint chips were left all around a recently repainted deck.  The video shows paint scraping debris all over the ground and on a picnic table.  The house was right near the ocean.  As you can probably tell from the audio the wind was blowing, causing the paint chips and dust to be spread all around the yard and walkways.  Obviously there was total disregard for any containment or clean up at all, as evidenced by the size of the paint chips.

If you are looking for forms and signage to help you with comply with the EPA RRP rule, I recommend you check out what The Lead Paint Forms Store has to offer.

Know the Difference Between RRP and Deleading To Avoid Breaking The Law

According to the Massachusetts Lead Law, any apartment unit or single family home with an occupant who is less than six years old must be deleaded. I bet if you are a Massachusetts resident you probably had no idea that this law existed. If you live outside of Massachusetts, you may want to find out if a similar law exists.

Deleading under the MA Lead Law requires the removal or covering of lead paint hazards in homes built before 1978 where any children under six live. Lead paint hazards include loose lead paint and lead paint on windows and other surfaces accessible to children. Owners are responsible with complying with the law. This includes owners of rental property as well as owners living in their own single family home. After deleading is completed, homes are "lead-safe", not "lead-free." In Massachusetts, financial help to accomplish deleading is available through tax credits, grants and loans.

Renovators need to understand that RRP work is not deleading. Your certification and or licensing to do RRP work does not qualify you to do deleading. If deleading is the customer’s purpose for doing the work, only a licensed deleader can do the work unless the property owner does the work himself. (If you are a MA property owner contemplating deleading work, see the note below)

At a recent RRP Workshop I presented in Marlborough MA, one of the attendees, wanted to make sure that everyone in the room understood the difference between RRP work and deleading. In the video below Lawrence “Skip” Moran of Lawrence J Moran, a licensed deleader and remodeling contractor, offers some clarification to help renovators avoid potential violations, fines and or challenges with their customers. Although some of the terms Skip uses in the video may be specific to Massachusetts, renovators around the country should heed what he has to say and check into deleading laws where they work before offering or performing deleading services for clients and or doing deleading at their own rental properties

Note: In Massachusetts, an owner or agent (someone working for an owner without a deleader's license) can perform some specific tasks, but cannot begin any of those tasks until:

1. The home is inspected by a licensed lead inspector
2. The owner or agent is properly trained to perform the deleading work

For more information about what work may be done by an owner or agent and how to become trained, call the Childhood Lead Poisoning Prevention Program at 1-800-532-9571

For more information about RRP for landlords in MA, contact the MA Department of Occupational Safety (DOS) at 1-617-969-7177

Study shows that the majority of children poisoned by lead during renovations were poisoned by their own parents doing the work.

According to Medscape Today, investigations conducted during 2006-2007 in New York state (excluding New York City) for 972 children with Blood Lead Levels (BLLs) ≥20 µg/dL, RRP activities were identified as the probable source of lead exposure in 139 (14%) of the 972 children. Resident owners or tenants performed 66% of the RRP work that was determined to have caused the poisoning, which often included sanding and scraping (42%), removal of painted materials or structures (29%), and other activities (29%) that can release particles of lead-based paint. Although this study only included one state, we can probably assume other states with older housing would likely have similar findings.

From this information we can deduct the following. 86% or 836 of the poisoned children were poisoned by exposure to lead in some way other than RRP activities. Also, of the children proven to be poisoned by RRP activities, 92 were poisoned by their own parents doing the renovation work, leaving a total of 47 children poisoned by RRP activities performed by someone other than their parents. The study did not specify who these others were. It is likely that most would be renovation companies, but a good number could also have been landlords or property developers doing their own work.

Although I agree renovators should be required to work lead-safe, I suggest that the RRP rule falls way too short in preventing lead poisoning. Allowing home owners and tenants to do RRP work without the knowledge and proper training required should be considered a travesty. Without understanding how lead poisoning happens and how to perform the work in a lead-safe manner, these parents are often unknowingly poisoning their children.

Sadly, many children are also poisoned by dads and moms who do RRP work for a living. Read this blog for a true story about a contractor who, while attending the required certified renovator training, panicked when he discovered he might be poisoning his own children. I wonder how many of the 972 children in the study mentioned above might have been poisoned by hugging their daddy when he got home from work. I know this happened at my home when I was working in the field. The good news is that the story is evidence that education can make a difference when it comes to preventing lead poisoning.

New Shawn McCadden Videos About The EPA RRP Rule; RRP Information For Renovators

I recently completed a series of seven videos about the new EPA RRP rule. The RRP videos were done for Remodeling magazine. They are posted to the Remodeling TV area of Remodeling magazine’s web site.

The videos are sponsored by The Home Depot. The video series is titled “The Insider's Guide to the EPA's Renovation, Repair and Painting Rule”. The series covers critical information about the Environmental Protection Agency's RRP rule and certification process, and explains how the rule may affect your business.

I had a lot of fun doing the videos. Lots of great people donated their time, knowledge and expertise. I also learned a lot from writing the script, interviewing contributors, editing the script with the magazine’s editor Sal Alfano, reviewing the raw footage, and working with the videographer, Chuck Greeen of Perpetual Motion Pictures. Working with Chuck was a unique advantage. As a fellow remodeler and Certified Renovator, Chuck not only filmed and edited the videos, he also contributed greatly to the content and success of the whole project.

Here is a list of the videos, a brief description of what is discussed in each as well as links to view them:

Video One: The EPA RRP Rule and Your Business

This video covers the business responsibilities, associated liabilities and risks related to the RRP Rule. Kermit Baker, Senior Research Fellow at Harvard University's Joint Center for Housing Studies stresses that remodelers need to become experts in this area or leave the work to others who are. Attorney Mike Sams of Kenney & Sams, P.C. warns about the legal liabilities for failure to follow the regulations. Shawn McCadden discusses the firm and worker certification process, related fees as well as certified renovator and firm responsibilities.

Video Two: RRP Training

This video covers the worker training requirements of the rule and the content of the EPA Certified Renovator training class. Shawn McCadden also discusses the importance and benefits of choosing a training class conducted by a training instructor with real life renovation experience.

Video Three: EPA RRP Notification Requirements

The EPA RRP rule specifies certain notification requirements depending on where the work is done and who occupies and or visits the building being renovated. This video covers these requirements, related firm documentation requirements as well as the information and documentation that must be given to property owners and others. Shawn McCadden also discusses many of the important details that must be included in the required documentation.

Video Four: RRP Work Practices

This video includes a summary of the required lead-safe work practices required under the RRP Rule. Shawn McCadden walks through critical considerations related to the rule that must be followed to stay in compliance with the rule, protect occupants and workers and to control costs. Shawn also discusses interior and exterior cleaning and cleaning verification requirements.

Video Five: RRP Record Keeping

Inspection of the required documentation under the rule will be a major enforcement tool used by EPA. In this video Shawn McCadden discusses the required documentation related to worksite activities as well as many business administration activities. Mark Paskell of the Contractor Coaching Partnership shares a few of the many methods EPA will have at their disposal to inspect and verify a firm’s compliance with the rule. Shawn adds several more methods to Mark’s list and also discusses the penalties and fines EPA can assess on violators.

Video Six: Exemptions to RRP Work Practices

In this video Shawn McCadden gives examples of when, where and why the RRP rule and work practices are not required under the rule. Shawn stresses that even if the work practices are not required under the RRP rule, your business will still be liable if lead poisoning and or contamination results from the way work is performed. Shawn and contractor insurance expert Tom Messier of Mason and Mason Insurance both stress the importance of verifying proper and adequate insurance coverage to protect your business, available coverage options as well as related costs for coverage.

Video Seven: Business Considerations and Summary

Shawn Mccadden stresses that this new rule is a game changer. Shawn tells us businesses must take this new rule seriously and adjust their business practices accordingly to protect profits and control liabilities. Mark Paskell of the Contractor Coaching Partnership stresses that contractors should verify that the documentation forms they use will comply with the rule and also assist the business in managing and performing the work. Gerry McGonagle of Belfor Property Restoration offers his advice on qualifying the right employees to do the work. Shawn also discusses some of the new responsibilities the rule brings with it for employees in all positions within the business.

If you are looking for forms and signage to help you with comply with the EPA RRP rule, I recommend you check out what The Lead Paint Forms Store has to offer.

Jury Awards Nearly $21M in Baltimore Lead Paint Case.

If you have been concerned about the legal risks and liabilities due to the RRP rule your concerns may be well founded.  Although very brief and lacking details, this Associated Press article from the Washington Examiner is probably very bad news for renovation contractors and landlords:

CT NARI Chapter Advises Membership How To Report RRP Violations

While at the Remodeling Show last week in Baltimore a CT remodeler shared with me that his local NARI Chapter, The Remodeling Contractors Association of Connecticut, had e-mailed out information to its membership about how to report violations of the RRP Rule to the EPA.   The e-mail included a PDF form created by the Region One EPA office as well as a link on the EPA site that could be used to report violations.

Although every “legal” remodeler I have spoken to expresses concerns about illegal competition doing their work in violation of the RRP rule, these remodelers are split about whether to report their illegal completion or not.  At the Opening Session I presented on Thursday morning at the Remodeling Show I offered my point of view on this.   I suggested that illegal contractors and the home owners who hire them are stealing business and money away from legal remodelers and their employees.  I gave the example that if you or I steal a TV from someone and get caught, we must return the TV and suffer any consequences.   If an illegal contractor or home owner steals a deck job from a legal contractor little or nothing is ever done and the home owner gets to keep the deck.   How long will our industry and the trade associations that represent us tolerate this?   Just like with illegal immigration, because our government does not enforce existing rules and laws on a consistent basis, illegal contractors operate with little fear of being caught and even if caught, have little fear of any consequences.

The reporting of illegal contractors is every contractor’s choice.  In a recent survey I created for Remodeling magazine the following question was asked.  

The survey was first sent out to the magazine’s reader panel.  157 people responded to the survey results shown above.  The numbers in the pie chart tell an interesting story.   Only 16% of those who responded indicated they would not report a contractor operating in violation of the RRP rule.   Just over half are still trying to decide.  

As we all wait to see what happens with the economy and how long a real recovery will take, I predict that their ability to pay their mortgage and put food on the family table will persuade many remodeling business owners to take action and defend their ability to run honest businesses.

If you would like more information about reporting violations and violators, check out this blog by Mark Paskell of the Contractor Coaching Partnership.   Mark even offers to do the reporting for you without divulging your identity.

Home Inspectors Will Help Spread The News About The EPA RRP Rule

If home buyers aren’t aware of lead paint or the implications of buying a property that has or may have lead paint, a good home inspector may likely provide such knowledge. 

In April this year I did a presentation about lead and the new RRP Rule for the New England Chapter of the American Society of Home Inspectors (ASHI New England).  Ironically, the meeting was scheduled for Earth Day, the same day the RRP rule went into effect.  At this meeting I informed the inspectors not only about the required EPA RRP lead –safe work practices, but also about the health effects of lead and the required documentation that home owners should receive on completion of a renovation if the property was built prior to 1978.  The inspectors were quick to connect the dots between identifying recent renovations and suggesting to the buyer that they ask the seller for a copy of these documents.

In my experience, home inspectors, particularly ASHI members, are typically a very detailed and knowledgeable group of professionals who seek to constantly increase their knowledge.  In fact, to maintain their membership in ASHI, members are required to obtain continuing education credits.  Home inspectors separate themselves from their completion through their knowledge and expertise and use these advantages to better serve their clients.  Home buyers have home inspections performed prior to a purchase as a way to not only identify the condition of a home, but to also identify any health and or safety issues the home may have. Good home inspectors should have knowledge about the EPA RRP rule and will share this information with their clients.

Home inspectors will help cause compliance with the EPA RRP rule in a few ways.  First, they will likely make home buyers aware of the fact that if built before 1978, the home may likely contain lead paint.  The only way to verify if lead paint is present is to do a lead test.  Inspectors can suggest their clients ask the seller if the home has been tested and if it has to obtain a copy of the required lead inspection report.  Next, if the home does have lead, or it hasn’t been tested, inspectors should inform the buyers that any renovations to the home would need to be done using lead-safe work practices.  This will have two effects.  The first would be to let the buyer know that lead-safe work practices are required should they be planning any renovations after purchasing the home.  Second, and most critical, would be to verify that any recent renovations done at the home were done using lead-safe work practices and to verify this by making sure who ever did the work did it in compliance with the EPA RRP requirements.  Again, requesting a copy of the required documentation will be the best way a buyer can confirm how such renovations were completed.

Additionally, if the work was done by the home owners themselves, or perhaps was done illegally by a non-complaint contractor, the only way to find out if the work may have contaminated the home with lead would be to have the home tested by a licensed lead inspector.   This is likely to create heartburn for both the seller and the realtors involved in the sale.  Federal disclosure rules about lead require that if a home is tested, the required lead test report must be disclosed to any buyer or anyone planning to rent or lease the property.  Failure to do so would result in serious legal liabilities for the seller and also for the realtor should the realtor be aware of the testing.  If the seller refuses to allow testing, the buyer may just walk away from the purchase and has the legal right to do so.  

As the above described scenarios take place during real estate transactions, I predict home owners, home buyers and realtors will all become more and more aware of the EPA RRP rule.  Each, and for their own reasons, will likely become frustrated and or disappointed.  All will share their frustration and disappointment with someone else.  Its only human nature to do so.  This will result in spreading the word about the EPA RRP rule and will contribute to the reporting of violations and the enforcement of the rule by either the EPA and or those states that have assumed administration and enforcement of the rule.