Making RRP Easier - New Understandings About RRP Work Practices

Guest Blogger:  Dean Lovvorn is a residential remodeler who has done numerous RRP projects.  He is also a Lead Inspector, Lead Risk Assessor and EPA RRP Renovator Instructor. 

This blog post is a follow-up to a previous RRPedia Guest Blog where Dean listed several differences between the work practices taught in the required Certified Renovator class and what he found is actually required in the RRP rule.

Making RRP Easier - New Understandings About RRP Work Practices

Back in April 2010, I had an exterior remodeling job that was put on hold for a day because of heavy rains.  In my boredom, I decided to read the actual RRP law from start to finish.  I soon discovered that what I was taught in my 8 hour class and what was in the student manual wasn’t necessarily in the actual law itself.     

I was probably dozing off in the 8 hour renovator class, but after these discoveries, I began to clarify some new understandings.

• On exterior containment set-ups, all I really needed to do was put plastic on the ground, be sure windows & doors were closed, cover any doors within 20 feet with plastic and put out a warning sign.  If there are no doors and/or windows within 20 feet, simply put plastic on the ground and a warning sign up.  Nothing else needed.
• On interior containment set-ups, I just needed to do the same as the exterior (except 6 feet out from where I was working).  If there were no furniture/objects or ducts within the 6 foot area … I didn’t have to go any further.  Be sure to tape down the plastic on the floor.

Of course, if I was doing some really dusty work, I made the containment (work area) larger, but other than that, it was pretty quick, easy and simple if you were to ask me.

Following are some examples of how reading the actual law has helped me.

Siding Replacement

In this example, I would place 3.5 mil plastic (from Home Depot), instead of the 6 mil plastic 10 feet out on the ground.  Then, I would make sure doors/windows were closed, put plastic over any doors and then put up the warning sign.  I would also run a plastic runner out to the dumpster and surround the ground around the dumpster with plastic.  Doing the containment this way, saves me from having to wrap, bag or HEPA vac the siding (or myself).  This is because I can dump the siding without ever going outside the containment area.

If exterior vertical containment is needed a simple solution (pictured to right) can be done.

Replacing Door Slabs

If my job is to replace 15 door slabs, I simply do this without following RRP.  This is because the only area I am disturbing on each door is the hinge area and since it falls under the Minor Repair and Maintenance Activities, RRP is not required.  This insight came from the FAQ section of the EPA web site.

Bathroom Remodel (Total Gut)

I can demo the tile, tub, shower, toilet and remove the demolition debris without doing any RRP.  After that has been done, I cover up ducts with plastic,  make sure windows are closed, close doors and cover with plastic, put up a warning sign and then cover the subfloor with plastic (6 feet out from where I will be working). 

I put the demoed walls, cabinets and trim into trash cans (with lids on top) and HEPA vac the outside of the trash cans (along with myself) before taking them out of the containment area.

Note:  If I’m lucky and there is an exit door (to the outside) close by … I could run plastic to the door, then outside to the dumpster.  This way, I wouldn’t need to worry about containing the demolition debris.

Normally, I do the final clean-up, visual inspection and cleaning verification after demolition; so that I can officially end RRP and let non-certified electricians/plumbers/sub-contractors into the work area.

Conclusion

It very well could be that if you did a little homework by reading the actual law, you could reduce the cost of compliance on many jobs to less than 5%.  Few contractors will lose a job because they are higher by less than 5%.  Plus, with the cost less than 5%, I don’t even mention RRP to my clients during the estimation process anymore, which has helped to improve sales. 

Amending An EPA RRP Firm Certification

The EPA RRP Rule provides certified firms with adequate time to amend their certification whenever a change to the information included in their RRP Certified Firm application occurs.  You just need to be aware of the requirement to do so and make sure to remember to do so should your information change.

Examples of amendments include a change in the firm's name without transfer of ownership, or a change of address or other contact information.

A firm must amend its certification within 90 days whenever a change occurs to information included in the firm's most recent application. Also, If the firm fails to amend its certification within 90 days of the date the change occurred, the firm would not be authorized to perform renovations until its certification has been amended.  This would be a tough thing for EPA to discover or track proactively, it would most likely happen if the firm was being audited or investigated.

How to Amend your RRP Certified Firm Application

• Amend its certification within 90 days of the date a change occurs to information included in the firm's most recent application.
• Submit an application, noting on the form that it was submitted as an amendment.
• Complete the sections of the application pertaining to the new information, and sign and date the form.
• Include the correct amount of fees.

Important Additional Considerations

• If one of your sub contractors neglects to update their application they will be violating the rule when working on one of your projects and could cause problems for your business.
• Amending a certification will not affect the validity of the existing certification or extend the certification expiration date.
• EPA will issue the firm a new certificate if necessary to reflect information included in the amendment.
• Firm certifications are not transferable--if the firm is sold, the new owner must submit a new initial application for certification in accordance with 40 CFR 745.89(a).
• If additional information is needed to process the amendment, or the firm did not pay the correct amount of fees, EPA will request the firm to submit the necessary information or fees.
• The firm's certification is not amended until the firm complies with the request.

The following information is from the NARI Government Affairs Committee’s newsletter of June 23, 2011 titled “NARI on the Hill”.  

NARI Work Group Findings on LRRP

From March through June 2011, a dedicated work group of NARI members regularly convened for the purpose of documenting challenges in the application of EPA's Lead Renovation, Repair and Painting Rule (LRRP Rule).  NARI's purpose is to convey to the EPA what is working and what is not working in implementation and to make recommendations.  The work group identified the following prioritized concerns with recommendations:

Concern #1

The rule application is presented as a "one size fits all" and fails to provide guidance on the varying conditions often found on job sites.

Recommendation #1

The EPA should revise the rule to define the desired outcomes and provide a tool box of options to address varying conditions.

Concern #2

The cost of compliance is driving homeowners to either DIY or hire an uncertified renovator thus defeating the purpose and intent of the rule.  Also, the rule does not address the contractor's responsibility when the work of disturbing lead paint has been undertaken and completed by the homeowner or an uncertified contractor. 

Recommendation #2

The EPA needs to educate the general public about the rule, clarify the contractor's responsibility under this scenario, and assess the impact of homeowner-initiated projects on childhood lead poisoning.

Concern #3

The EPA lacks an effective method of providing updates and information on the rule.  The website housing over 600 FAQs is not a feasible communications tool.

Recommendation #3

EPA and states with oversight should provide a regular newsletter with necessary updates.  The website should be overhauled addressing the topical information needs of the user.

Concern #4

The rule is not clear on the training and certification requirements for subcontractors used by the certified renovator.

Recommendation #4

The EPA should clarify the responsibilities of subcontractors and define a "certified renovator of record" as a single point of contact throughout the project. 

Concern #5

The model training program is not consistent with the current rule.  Curriculum and materials do not reflect amendments.

Recommendation #5

The EPA must exercise responsibility in properly maintaining training curriculum and material content.

 Why we convened a Work Group: to inform various entities in Washington about the issues with regard to this regulation.  Since regulatory reform is a hot topic in Washington right now, the time is right to share these findings and garner more support. When trying to bring an issue to light in Washington, officials want current data to review, so the Work Group convened for a current, detailed analysis and NARI is sharing recommendations of the Work Group in Washington.

A copy of the complete report is available by request by e-mailing: gac@nari.org.

If An EPA Recognized Lead Test Kit Indicates No Lead, Can A Non-Certified Firm Do The Work?

This can be tricky.  Keep in mind that for RRP purposes, only a certified renovator or licensed lead testing professional can do testing to determine that no lead is present.  As EPA indicates in their answer below, if the certified renovator working for a certified firm does the testing, that firm must maintain the required documentation regarding the testing.   So, if the firm that did the testing is doing the renovation, and the testing shows no lead, they can hire (subcontract to) non-certified firms and non-certified workers to do the work.  

Here is one question and answer I found on the EPA FAQ page to help clarify:

Question: If a certified renovator using an EPA-recognized test kit determines that the components that will be affected by a renovation are free of lead-based paint, can a firm that does not have RRP certification do the actual renovation work? What record-keeping requirements would apply?

EPA Answer: Where a certified renovator uses an EPA-recognized test kit, follows the kit manufacturer’s instructions, tests each component affected by the renovation, and determines that the components are free of paint or other surface coatings that contain lead at regulated levels, the renovation can be performed by a non-certified firm and without regard to the work practice standards or record-keeping requirements of the RRP Rule. See 40 CFR 745.82(a)(2). 

However, the certified renovator and firm making the lead-based paint free determination are still subject to the recordkeeping requirements of 745.86(b)(1)(ii) and 745.86(a). Specifically, the certified renovator must prepare a record that states the brand of test kit used, the components tested, and results of the tests. The certified renovator’s firm must retain a copy of this record for three years. EPA further recommends that the firm actually performing the renovation also retain a copy of these records to demonstrate that compliance with the RRP Rule was not required.

So it appears that a non-certified firm can do the work if testing that proved no lead was found was done by someone else, as long as the determination was made by a certified lead inspector or risk assessor, or by a certified renovator using an EPA recognized test kit and following the kit manufacturer’s instructions.    The key is however, that the non-certified firm must have written proof from the person or business that did the testing that there is no lead in the work areas to be disturbed.

So, here is the rub. 

If you are a certified firm and have a certified renovator do the testing, and you give the homeowner a copy of the testing report you create, that homeowner could then hire a non-certified firm to do the work because that homeowner and the non-certified firm they hire can use your test results to avoid RRP firm and work requirements.  Think about this before you test and make your own best decision about if and when you will test during the sales process.

Do My Sub Contractors Need To Be RRP Certified?

There has been a lot of confusion regarding the details of the EPA RRP rule.  One that seems to pop up over and over is certification requirements for sub contractors.  There are two different certification considerations regarding sub contractors; firm certification and worker certification.  Let’s take a look at each separately.

Firm Certification for Sub Contractors:

The EPA is very clear on this.  The following question and answer comes from the EPA web site’s FAQ page:

Question: My firm performs renovations covered by the RRP rule, but solely in the capacity of a subcontractor. If the general contractor is a certified firm, does my firm also have to be certified, or can we just provide the certified renovator?

EPA Answer: All firms performing, offering, or claiming to perform renovations covered by the RRP rule must be certified. In this case, both the general contractor and subcontractor must become certified firms.  

Whether working for the general contractor as a trade partner or a 1099 sales person (offers the work), sub contractors must become certified firms by apply for certification through the EPA.   Ensuring that the subs they use are certified firms is particularly important for general contractors, because as part of the required documentation under the rule, the renovation checklist must include the names of all workers who participated in RRP activities on the job.  If a sub contractor and his workers do work on the job and the sub’s firm is not certified, the EPA will easily be able to find both the general contractor and the sub in violation of the rule.  If a general contractor knows that subs must be certified firms, hiring a non-certified firm to work on a job becomes a knowing and willful violation of the rule, which brings with it serious penalties.  It’s also one easy way for a customer’s lawyer to suggest the contractor is/was negligent.

Note: Both Massachusetts and Rhode Island have this same requirement for sub contractors. 

Worker Certification for Sub Contractors:

Again, the EPA is very clear on this.  The following question and answer comes from the EPA web site’s FAQ page:

Question: Under the RRP Rule, can a certified renovator supervise workers of a different company, or must each firm involved in a project furnish a certified renovator?

EPA Answer: All firms performing renovations must ensure that all individuals performing renovation activities on behalf of the firm are either certified renovators or have been trained by a certified renovator.  The RRP Rule does not prohibit firms from reaching agreement on which will supply the certified renovator who is responsible for ensuring compliance with the RRP Rule and who directs and trains non-certified workers.  All firms remain liable for ensuring compliance with the RRP Rule.    

Who is Liable, The General Contractor or the Sub?

The following question and answer provides clarification regarding the responsibility and liability of the business that is acting as the general contractor:

Question: Is the certified renovator assigned to a specific project responsible for the work practices of other contractors on the project if the certified renovator is an employee of the general contractor of the project?

EPA Answer: All firms performing renovations must ensure that all individuals performing renovation activities on behalf of the firm are either certified renovators or have been trained by a certified renovator. A firm acting as a general contractor may satisfy this requirement by hiring another certified firm that takes responsibility for ensuring that all individuals performing the renovation activities are either certified renovators or have been trained by a certified renovator. With respect to assigning a certified renovator who is responsible for any on-the-job training and regularly directing workers who are not certified renovators, a firm acting as a general contractor my satisfy this requirement by hiring another certified firm that in turn assigns a certified renovator to the job. However, this does not discharge the general contractor's liability to ensure compliance with the Renovation, Repair, and Painting Rule.

Note: The answer above also applies in Massachusetts, but does not apply in Rhode Island.  In Rhode Island, the RI Lead Hazard Control Standard (Section 14.0) requires the Licensed Lead Hazard Control Firm (LHCF) to have a RI licensed Lead-Safe Remodeler/Renovator (LRM) designee as a condition of licensure.

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.

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.

Question: Does the RRP rule require people working on a renovation to wear respirators, Tyvek(R) suits or other personal protective equipment (PPE)? 

Most renovation contractors have little knowledge or experience with OSHA requirements.  OSHA requirements concentrate on the occupational safety of the worker.  There are many OSHA requirements that contractors should already be following if they use employees or sub contractors on their job sites.  Because lead can create serious health risks for employees and workers, employers would be wise to become familiar with the OSHA requirements related to the work they perform under the EPA RRP rule. 

The required containment methods and work practices have changed the way work gets done in the field.  Even if working within OSHA requirements in the past, new activities and methods used on RRP related projects most likely trigger personal protection considerations under OSHA regulations.

Unfortunately, while creating the EPA RRP rule, the EPA did not include reference to any specific OSHA requirements.  Therefore, renovators need to know and understand both the RRP rule as well as any related OSHA requirements in order to protect workers and avoid potential penalties from OSHA and or EPA.  To learn more about the related OSHA requirements, renovators can refer to the OSHA Lead in Construction Standards.

In the new MA RRP rules, still yet to be enforced as of this posting, many of the OSHA requirements related to RRP work have been included in the regulations.  When I met with employees from the MA Department of Occupational Safety to discuss the proposed rule, they were very helpful in clarifying the reasons for adding these consideration.  So, although the EPA and OSHA may not have collaborated when the EPA RRP rule was created, MA renovation contractors will have the advantage of knowing what OSHA requirements they will need to consider depending on the work they do as well as the methods they use to do the work.  Reading the MA RRP rule would help renovators working under the EPA RRP rule identify many of the related OSHA considerations.

Here is EPA's response to the question at the beginning of this post:

"EPA would like to clarify the requirements for personal protective equipment.  The Occupational Safety and Health Administration (OSHA) has requirements for personal protective equipment, EPA does not.  For many years, EPA has recommended the use of personal protective equipment as a way to protect workers and to help ensure that leaded dust and debris does not leave renovation or abatement work sites.  EPA recommends that renovators make use of the minimum respiratory protection recommended by the National Institute of Occupational Safety and Health (NIOSH) for environments where lead is present, but respiratory protection is not required by the EPA regulations.  In addition, disposable clothing, if removed and disposed of before the workers leave the work site, can provide additional protection for workers' families by ensuring that no leaded dust or debris is carried home on worker clothing.  However, EPA does not require this and allows renovators to use other methods to ensure that dust and debris does not leave the work area, including the HEPA vacuuming of clothing, tools, and other items before they leave the work area."  

Question:
If a general contractor hires a subcontractor to work at a renovation site, does the subcontractor need to be an EPA certified firm if the subcontractor does not disturb any paint? 

According to the EPA Website:

Firms performing tasks that disturb no painted surfaces whatsoever do not need to be EPA Certified Firms.  However, since conditions at the job site may be difficult to predict, EPA strongly recommends that all firms involved in the renovation be certified and use properly trained and certified personnel.  For example, a firm hired to install an HVAC system after demolition of painted surfaces has taken place may find that to complete the job painted surfaces need to be disturbed.  The HVAC firm may not engage in activities that disturb painted surfaces if it is not certified.  

As every renovation job is different, it is up to the firm acting as the general contractor to determine what activities are within the scope of the renovation and to ensure that other firms are properly trained and certified for the tasks they will be performing.  All firms, including the firm acting as the general contractor, are responsible for making sure the renovation is performed in accordance with the RRP work practice standards, including keeping containment intact and making sure lead dust and debris do not leave the work site.   General contractors should keep in mind that if a firm hires a subcontractor that fails to follow the work practice standards or otherwise violates the Renovation, Repair, and Painting rule, the firm that hired the subcontractor is also responsible for the violation.