EPA Announces More Lead Paint Violation Fines; This Time Against Landlords

Seems EPA has started their publicity campaign regarding enforcement of RRP and other lead related regulations.  This one is not RRP specific, but as the second violation announcement this week it certainly seems to demonstrate that EPA is using enforcement and press releases to get their message out about compliance with lead paint requirements.

News Release
U.S. Environmental Protection Agency
New England Regional Office
April 11, 2012

Contact: Paula Ballentine, 617-918-1027

Conn. And Mass. Based Landlords Face Fines for Failing to Notify Tenants about Lead Paint

(Boston, Mass. – April 11, 2012) The owners of rental properties in Bridgeport, Conn. as well as South Boston, Roxbury, and Dorchester, Mass., face EPA penalties for violating federal lead paint disclosure rules. In both cases, these violations potentially put tenants at risk of exposure to lead hazards.

According to a complaint filed by EPA’s New England office, Juan Hernandez allegedly violated lead-based paint disclosure requirements seven times when he rented apartment units in Bridgeport, Conn. between 2008 and 2010.  Mr. Hernandez faces an EPA penalty of up to $127,150 for violating federal lead paint disclosure rules. During the time period relevant to EPA’s investigation, all of the apartment buildings owned by Mr. Hernandez were located in potential environmental justice areas. 

In a separate EPA complaint, Edward Franco, owner of El Paso Management, and its affiliates allegedly violated lead-based paint disclosure requirements when they rented apartment units three times in South Boston, Roxbury, and Dorchester in 2009.  Most of the tenants involved in this case live in low income and/or minority areas.

Both parties are charged with failing to give tenants required lead hazard information pamphlets, failing to include lead warning statements in leases, failing to disclose any known lead-based paint or lead-based paint hazards, and/or failing to provide records or reports pertaining to lead-based paint or lead-based paint hazards.

Federal lead disclosure rules are meant to give tenants adequate information about the risks associated with lead paint so that they can make informed decisions before signing a lease contract. Property owners leasing housing built before 1978 are required to provide the following information to tenants: the EPA-approved lead hazard information pamphlet, Protect Your Family from Lead in Your Home; a lead warning statement; statements disclosing any known lead-based paint and/or lead-based paint hazards; and copies of all available records or reports regarding lead-based paint and lead-based paint hazards.  This information must be provided to tenants before they enter into leases.

Infants and young children are especially vulnerable to lead paint exposure, which can cause developmental impairment, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity and behavioral problems.  Adults with high lead levels can suffer difficulties during pregnancy, high blood pressure, nerve disorders, memory problems and muscle and joint pain.

More information:
Lead-based paint health hazards (www.epa.gov/ne/eco/ne_lead/index.html)
Lead-based paint disclosure rule (www.epa.gov/ne/enforcement/leadpaint/index.html) 

Click here for more RRPedia blog posts for landlords.

Shawn is available to help landlords with the RRP Rule.  If you are a landlord or belong to a landlord association that is seeking assistance with the RRP rule, contact Shawn today to discuss how he can help.

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.

Rhode Island RRP Rule

Rhode Island has been operating a Lead-Safe Remodeler/Renovator Program since 2001 and has licensed over 1,500 Lead-Safe Remodeler/Renovators. In 2010, the Environmental Protection Agency (EPA) created its own Lead-Safe Remodeler/Renovator Program, known as the Lead-Based Paint Renovation, Repair, and Painting Rule. Rhode Island was the first New England state granted authority by EPA to continue its state Remodeler/Renovator program. 

The following information is from the RI Department of Health web site:

Regulated People and Activities

Rhode Island's RRP Rule applies to contractors, landlords, property managers, homeowners, and anyone else who disturbs painted surfaces on pre-1978 homes or child care facilities. This includes general contractors as well as special trade contractors, such as painters, plumbers, carpenters, and electricians.

In general, the RI RRP Rule applies to any renovation, repair, or painting that disturbs six square feet or more of paint per room on the interior or 20 square feet or more of paint on the exterior of a pre-1978 house or child care facility. Examples of regulated activities include window replacement, remodeling, repair/maintenance, electrical work, plumbing, painting, carpentry, and any type of demolition.

Not all projects are regulated by the RRP Rule. The chart below details who can do what type of work:

Rhode Island's regulations differ from the federal RRP Rule in a few key ways
• Parents with children younger than six years of age must use a licensed Lead Hazard Control Firm.
• The Lead Hazard Control Firm must submit a Start Work Notification to the Department of Health at least three business days before beginning work.
• A licensed Lead-Safe Remodeler/Renovator must be on site at all times.
• When the work is complete, a clearance inspection by a Rhode Island Certified Environmental Lead Inspector or Technician is required. The clearance inspection must include dust wipe samples analyzed by an approved laboratory. Once acceptable dust levels are achieved, the inspector or technician will issue a Certification of Acceptable Clearance Status.

Exemptions
• Housing built after 1978 and any housing declared lead-free by a Rhode Island Certified Environmental Lead Inspector is generally exempt from Rhode Island's RRP Rule.
• Other exemptions include housing for elderly or disabled persons, studio apartments, and dormitories. These buildings are regulated if a child younger than six years old resides there, or is expected to reside there, for more than two weeks per year.

Requirements

Training
• Contractors, painters, and other workers must complete an eight-hour Lead-Safe Remodeler/Renovator training by a licensed training provider.

Licensing
• Once training is complete, an individual can apply to be a licensed Lead-Safe Remodeler/Renovator.
• All Rhode Island licensed Lead-Safe Remodeler/Renovators must be affiliated with licensed Lead Hazard Control Firms.
• Individuals and firms must renew their licenses every five years after completing a four-hour refresher course. (Note: The fee for firms in RI is only $45.00!)

Start Work & Pre-Renovation Notification
• The firm must deliver a copy of the Rhode Island version of the Renovate Right pamphlet to property owners and tenants no more than 60 days and no less than seven days before work begins. 
• The firm must fill out the Pre-Renovation Education form at the back of the pamphlet, have it signed, and keep it for a minimum of three years.
• At least three business days before beginning a job, the firm must submit a Start Work Notification to the Department of Health. 

Lead-Safe Work Practices

While work is being performed, Lead-Safe Remodeler/Renovators and their workers must:

• Contain the work area to prevent dust and debris from escaping.
• Refrain from using work methods that generate large amounts of lead-contaminated dust.
• Dry sweeping, using heat guns at temperatures above 1100°F, open flame burning, and using flammable or methylene chloride paint strippers are prohibited.

When work is complete, Lead-Safe Remodeler/Renovators and their workers must:

• Clean dust and debris using a HEPA vacuum and wet mops.
• Have a Certified Environmental Lead Inspector or Technician conduct a clearance inspection.
• Remove containment barriers upon notification that the dust wipes passed clearance.

Renovators And Their Trade Partners Will Need To Work Out And Agree On Who Will Do What

Many contractors seeking to comply with the new EPA RRP rule are reporting concerns and challenges about finding trade partners who are willing to operate in compliance.  Many renovators have told me that their trade partners have flat out refused to get their businesses and workers certified.  Others have said their trade partners have committed to do so but have been slow to get it done due to the related costs.  This has become quite an opportunity for some trade partners who have become certified and are marketing their certifications and services to general contractors. Several are actually offering to sub-contract the set-up, containment, demo, clean-up, cleaning verification and all related and required documentation for general contractors.

A surprise to me, but also a no-brainer, was one electrician’s comment that he was having problems finding general contractors to work for who were in RRP compliance.  Just as general contractors need to find new compliant trade partners to work for them, many trade partners are finding they can no longer rely on the volume of work they got in the past from contractors if those businesses choose to operate illegally.

Liability risks may also drive compliance.  Renovators and their trade partners will need to work out and agree on who will do what.  Here are a few examples:

• Who will take care of the notification requirements and documentation of same before the job begins?  Under the rule, either can do so, but the business under contract with the property owner must maintain the required documentation.

• If a trade partner or his employees are not certified renovators, will the renovator take on the responsibility of training and supervising the trade partner and or his employees?  If so, at what level of risk? And, will either business’s insurance company allow such a relationship in the future?  

• Who will create the required renovation checklist?

• Who will make sure the homeowner and or tenant receives a copy of the required renovation checklist after completion of the work? 

• In Massachusetts, who will maintain the required log documenting who comes in and out of the containment area during the course of renovations?

The first time a RRP fine is accessed for a violation the finger pointing will start, causing one or both businesses to get serious about certification and compliance.  The first time a renovator is sued by a client or neighbor as a result of the actions of a trade partner, the tactics used by the lawyers will cause both businesses to have a new and different outlook on RRP compliance, insurance coverage amounts and indemnification clauses.  Attorney Mike Sams of Kenney & Sams, P.C., told me that failure of a business to be properly certified under the RRP rule on its own is evidence of negligence should a homeowner or insurance company take the contractor or trade partner to court.  Taking this a little further, a contractor hiring a non-certified trade partner might also be considered negligence if that trade partner is allowed to work unsupervised.

To confuse matters even further, under their definition of the difference between an employee and an independent contractor, the IRS says that a contractor cannot supervise the work or workers of a sub contractor.  Doing so might result in the IRS labeling the sub contractor as an employee. If this were to happen it could trigger addition payroll taxes and workers compensation costs for the general contractor.

EPA Cites Company $784,380 for Failing to Warn Residents of Lead-Based Paint Exposures

June 20, 2010

The U.S. Environmental Protection Agency recently filed a complaint and proposed a $784,380 penalty against Hanson’s Window and Construction Inc. of Madison Heights, Mich., for violations of the 1998 federal rule for failure to warn residents of potential lead-based paint exposures.

EPA alleges that in May 2005, Hanson, a window installation firm, failed to provide home owners and tenants of 271 residential properties in Lansing, East Lansing, Haslett, Charlotte, Onondaga, Williamston, Holt, Stockbridge, Mason, Leslie, and Warren with required information warning residents that their construction activities could expose residents to lead. The citation is based in part on information that two children living in renovated Michigan homes had tested positive for elevated blood lead levels.

The Pre-Renovation Lead Information Rule requires that renovators provide homeowners, tenants, and owners of child-occupied facilities with the “Renovate Right” pamphlet and obtain written confirmation that they have received it. The purpose of the rule is to protect families during renovations in housing built before 1978.

Lead exposure can cause reduced IQ, learning disabilities, developmental delays, reduced height, poor hearing, and other health problems in young children.

Lead-based paint dust created during renovations is the most common source of lead exposure to children in the United States. About 75 percent of the nation’s housing built before 1978 contains lead-based paint. When properly managed, lead-based paint poses little risk. If paint is not maintained, however, even low levels of lead exposure can threaten occupants’ health, especially children and pregnant women

This information was found at ohsonline.com

Recognized test kit means a commercially available kit recognized by EPA under Sec.  745.88 as being capable of allowing a user to determine the presence of lead at levels equal to or in excess of 1.0 milligrams per square centimeter, or more than 0.5% lead by weight, in a paint chip, paint powder, or painted surface.  

According to the RRP Rule, a certified renovator must, when requested by the party contracting for renovation services, use an acceptable test kit to determine whether components to be affected by the renovation contain lead-based paint. 

When test kits are used, the renovation firm must, within 30 days of the completion of the renovation, provide identifying information as to the manufacturer and model of the test kits used, a description of the components that were tested including their locations, and the test kit results to the person who contracted for the renovation.  I suggest that renovators do not do any testing without first obtaining written permission from the property owner, due to disclosure considerations for the owner when they sell or lease the property.  

The certified renovator is responsible to provide narrative information  about any testing preformed on the required renovation record keeping  checklist , such as an identification of the brand of test kits used, the locations where they were used, and the results.

The following information is from the EPA Website:

"Under the EPA Lead Renovation Repair and Painting (RRP) rule, EPA will evaluate and recognize test kits that can be used to determine the presence of regulated levels of lead in lead-based paint surfaces. After initial evaluation, EPA is recognizing two currently available lead test kits, with limitations. They are the LeadCheck® kit and the State of Massachusetts kit. Read more about how EPA evaluates lead test kits.

• EPA recognizes that, when used by a certified renovator, the LeadCheck® lead test kit can reliably determine that regulated lead-based paint is not present on all surfaces, except plaster and drywall. Certified inspectors, renovators, risk assessors seeking to use the LeadCheck® kit for purposes of meeting requirements in the Renovation, Repair, and Painting Rule can purchase the LeadCheck® kits from either LeadCheck® directly or from certain retail outlets. Kits sold in retail stores do not currently include the necessary Test Confirmation Card and so are not approved for use by certified inspectors, renovators, and risk assessors. LeadCheck® is manufactured by Hybrivet Systems. To order a Hybrivet System LeadCheck®test kit call (              508-651-7881         508-651-7881) or e-mail Hybrivet at info@leadcheck.com.

• EPA recognizes that, when used by trained professionals, the State of Massachusetts lead test kit can reliably determine that regulated lead-based paint is not present on all surfaces except ferrous metal. (Note: The State of Massachusetts kit was developed by the state and is only used in public housing by State of Mass employees.  It is not a commercially available kit.)

EPA will continue to update information on recognized spot-test kits as it becomes available. For any questions pertaining to the recognition of these kits, contact Sam Brown at 202-566-0490 or by email at brown.sam@epa.gov."

View this information on the EPA Website

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.

Question:

Is an electronic version of the lead information pamphlet sent to the customer via e-mail an acceptable means of distributing the information?

According to the EPA web site:

"The distribution of the lead information pamphlet(required under the EPA RRP Rule) (40 CFR § 745.83) via e-mail is an acceptable means of distributing the pamphlet as long as the requirements of the Electronic Signatures in Global and National Commerce Act ("Act")  (15 U.S.C. § 7001 et seq.) are met.  The Act requires that the recipient of the pamphlet, among other things, consents electronically to email delivery and in a manner that demonstrates that the recipient can access the information in the form it will be provided.  In addition, the recipient must be allowed to withdraw this consent and be informed of the procedures for withdrawing consent. Further, the recipient must be provided with a statement of the hardware and software requirements for accessing and retaining the pamphlet."

Click here for a lay person's explanation of what is required from Wikipedia

Click here to view and or download a PDF of the Act

Click here to see how one contractor delivers it via a link on his web site.