Insurance Companies Will Be Rethinking Coverage and Premiums Due to EPA RRP Rule

Many liability insurance policies do not cover lead poisoning or contamination.  Renovators should be sure they are working with an agent who is up on the EPA RRP rule and should sit down with their agent to review their coverage needs and options.  Tom Messier, with Mason and Mason Insurance, tells me that insurance companies are starting to become aware of the RRP rule.  Insurance is all about risk. The greater the risk, the higher the cost of insurance will be.

Increased risk of liability due to lead awareness as well as the government mandated certification requirements are likely to affect a renovator’s ability to get a policy as well as the premium charged by carriers who offer coverage.  Tom told me he predicts that existing policies will not be renewed unless a renovator can show they are certified firms and use certified renovators to oversee the work their company performs.  He also predicts insurance carriers will start requiring the insured’s proof of compliance with the rule as well as proof of compliance and insurance coverage for the trade partners the insured renovator works with.  Tom stressed that this would be for both liability as well as workers compensation insurance coverages. He said that even if they are self-employed, insurance carriers will likely require all trade partners have their own workers compensation policies as a way to prevent injured or poisoned trade partners from claiming against the general contractor’s policy. 

Also Tom warns, just as many insurance companies now review the contracts contractors use with customers and trade partners before offering or renewing a policy, Tom predicts carriers will be asking to see completed copies of the required RRP documentation used by contractors.   I asked Tom what renovators should do to protect themselves and be sure they can maintain coverage going forward.  Tom’s response; “Document, document, document!!!” 

One other area that will likely be of concern is lead coverage in policies for landlords who own pre-1978 properties.  Here too, compliance with RRP rules and documentation of work practices used for renovations and repairs will likely become required conditions of obtaining and keeping coverage.  The EPA RRP rule may also cause an increase in insurance coverage on properties built prior to 1978, for landlords and maybe even home owners.

Uninformed and Nervous Neighbors Will Keep RRP Renovators On Their Toes

Awareness about lead and the potential effects of lead poisoning may not yet be prevalent with the public, but it will quickly increase.  Renovators need to deal with this reality in a proactive way.  Training and firm certification are great first steps.  But, renovators will need to do much more to protect their businesses from potential challenges and liabilities triggered by an uniformed public.

First, the EPA’s public awareness campaign has already begun.  The campaign warns people of the dangers of lead, but does little to make them aware of the RRP rule, the need to work with renovators who are certified in lead-safe work practices, and or how to find a certified firm to oversee work on the homes they live in.  So, in effect, the campaign warns the public but leaves them basically ignorant of their options. (Click on the sample ad to the left to view in full size)

Second, the warning signs and barriers required to be put in place around exterior and common area containment areas will have a similar effect of raising concern.  Unless properly educated about their options and about lead-safe work practices, neighbors and the parents of children attending child occupied facilities will again suffer from ignorance about lead.  Many will likely react out of fear.   This fear may potentially result in reporting a renovator and causing an inspection, even if the renovation work is being done within compliance. 

Remember, as a business you are guilty until you prove yourself innocent at your own expense.  An OSHA and or RRP inspector will likely be able to find at least one violation of some rule if they show up at one of your jobsites.  Some inspectors may even feel it is their obligation to find a violation.  The cost to defend yourself might be as high as the cost of any fines, so even if you win you lose. In Massachusetts, the Department of Occupational Safety (DOS) is already collaborating with OSHA regarding what to do if either finds a violation that should be referred to the other.  Oh, and don’t forget those neighbors who have a bone to pick with your customer, have nothing else to do all day, and or are just plain paranoid.

Compliance With and Enforcement of the RRP Rule Will Be Assisted By OSHA Inspectors

In addition to the OSHA rules contractors should already have been aware of related to worker safety, the EPA RRP rule has added yet additional OSHA concerns for renovators.  One for example is working on a surface covered with plastic. OSHA considerations related to working on plastic are not part of the curriculum delivered during the required EPA certified renovator training. Due to the absence of this information, the EPA is essentially leaving it up to renovators to become aware of such considerations on their own.  Once aware, renovators must seek out the information they need and adjust their work practices accordingly to avoid fines from OSHA should they get randomly inspected.   Or worse, have a worker accident. 

This begs a few questions.  First, were the authors ignorant of such considerations?  Asked another way, does the left hand know what the right hand is doing?  Is this another example of a breakdown in communication between very significant departments of our government charged to look out for our best interests?  A second question might be; did the authors of the EPA RRP rule leave this information out of the rule for a strategic purpose?  Perhaps this is just one more way to force small independent businesses out of the construction industry in favor or labor unions. 

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 about a contractor who was visited, at the same time, by both an OSHA inspector as well as an inspector from the Massachusetts Department of Occupational Safety (DOS).  (Massachusetts has assumed administration and enforcement of the RRP rule from EOPA)  In the blog Mark describes the battle that took place between the OSHA inspector and the DOS inspector about the use of plastic on the jobsite. Check out the blog to see which inspector retreated. 

Of bigger concern should be the distribution of misinformation at the certified renovator training.  For example, using the sample signage included in the EPA approved training manual (required to be posted outside contained work areas), might just get you in trouble with OSHA.  First off the RRP rule requires the use of a “warning” sign, but the sample sign is a “caution” sign.  OSHA considers a warning sign to be a stronger message than a caution sign, and has rules dictating when and how to choose one versus the other. 

Also, if you have employees, the sample sign in the manual will not meet OSHA requirements either.  Employees must be told what they are being warned about on such signs, in this case lead, and the signs must also instruct the employees not to smoke, eat, or drink in a work area assumed to contain lead.  Check out this article by Dick Hughes of Excellence in Safety for a list of other OSHA requirements left out of the RRP rule. 

The RRP is challenging enough to comply with.  Contractors putting their heads in the sand about OSHA requirements and compliance are taking a huge risk.  I am planning on taking some OSHA training classes to learn more about what contractors must need to be aware of and what they will need to do to avoid risking violations and fines.  I will post information about this subject to RRPedia in the future.   If you have not done so already, you can subscribe to RRPedia at the top of this page.   Subscribers will be notified by e-mail as soon as new articles are posted.

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.

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.