RRP Conundrum: To Test or Not to Test for Lead Paint.
Since the EPA RRP rule came into effect in April of 2010 renovation contractors have debated and bantered the topic of doing lead testing before they offer to sell and or perform renovations at pre 1978 properties. Due to lead testing disclosure requirements many contractors and properly owners have concerns about doing the testing. Once a property is identified as containing lead many other laws, legal considerations (page of related articles) and potential liabilities kick in for both. The catch 22 on this subject is that, under the RRP rule and the OSHA lead in construction regulations, if testing is not done before work begins, contractors must assume there is lead present. It’s only natural under this scenario then that renovation workers, property owners and tenants at those properties are also left to assume, and worry, that there is lead and conducting renovations may leave them exposed.
Often discussions on these topics get passionate when contractors express their concerns about the liability they feel the rule exposes them and their businesses to even if they follow the rule and comply with all of its lead safe work practices and documentation requirements. Many contractors feel the EPA should have written some level of protection from liability into the rule for those renovators who abide by it.
Recently I discussed these considerations with John MacIssac of ASAP Environmental. John is MA State Certified Lead Inspector and Risk Inspector and an expert in renovation and construction. During that conversation John and I assembled a list of the considerations that seem to rise to the top during those discussions.
Who pays for RRP lead testing?
If a certified renovator will not be the one doing lead testing for RRP purposes, the testing must be done by a licensed lead testing professional. Licensed lead inspectors in Massachusetts and other states cannot accept money for lead testing from contractors under contract with a property owner. Therefore the homeowner is responsible for payment of all services relative to the lead testing.
Are you removed from liability if RRP lead testing is done?
Depending on the contractor liability insurance that you have you may be removed from liability if you do the testing, cleaning and cleaning verification yourself. If you do not have insurance you are not removed from liability. If you have a licensed lead inspector do the testing and clearance you are removed from liability if the company you hire to do the testing has their own coverage.
Considerations related to doing testing yourself using test kits vs. using a licensed lead Inspector
- Time it takes to do the testing and fill out the paperwork
- Cost of test kits depending on number of components to test
- Damage to components
- The EPA recognized lead test kits are qualitative where as a XRF test is quantitative. Under the EPA RRP rule’s legal definition of lead paint, the amount of lead present may be below RRP definition, but, if using test kits, any positive result triggers need for compliance even if below definition.
Pretesting to establish a point of reference when clearance testing will be a requirement at completion
A pretest for lead dust could establish whether the site is already contaminated or not. If it is, who will perform and pay the related costs to get it cleaned up before the contractor starts renovation work so the contractor is only then responsible to clean up affected work areas and pass dust wipe clearance testingat completion?
Education will be key in preventing liability
There are typically no easy answers to these considerations or guaranteed ways contractors can sell and do their work to prevent the possibility of liability. That said education about the considerations and available options is probably the best way for contractors to protect themselves and their business.
If you’re in Massachusetts and want to learn more about the RRP rule, lead testing considerations and lead testing options John will be hosting a free Lunch and Learn Session at National Lumber in Mansfield MA on March 3rd, 2013 from noon to 1PM. The Lunch and Learn Session will be held before the start of a workshop presented by RRP Instructor and RRP Rule expert Mark Paskell titled “RRP and OSHA Workshop for Contractors and Remodelers” that will also include a discussion about the differences between the EPA RRP rule and the Massachusetts RRP regulations.