Lead Paint Law: What Now?

Renovation activities like sanding, cutting and demolition can create hazardous lead dust and chips which can be harmful to adults and children. To minimize this harm, the EPA has enacted a law that requires general and specialty contractors to be certified before renovating homes, child care facilities or schools built before 1978. The law took effect April 22, 2010 and you must comply. But how do you do that?

To start, if you are not certified, either get certified or don’t do any work on homes built prior to 1978. If you are certified, you will need to provide proof — your certificate — to owners if they ask. The certification training should have taken you through the various procedural steps you need to follow to test for lead-based paint and, if present, to work in a manner to prevent contamination. It would be advisable to review the requirements set forth in the EPA handout for contractors. (http://epa.gov/lead/pubs/sbcomplianceguide.pdf)

But beyond that, what do you do from a legal standpoint? The truth is that no one is really sure because it is all new. Lawyers typically do the best they can to interpret the rules, but for definitive answers we will need to wait for court cases or EPA rulings to come down in the years to come. With that said, I’m going to try to give you a little guidance for renovating pre-1978 homes. The rules may also be expanded in the future to apply to public and commercial buildings. Here are a few things you should do:

  1. Provide a pamphlet. Give all owners and occupants of pre-1978 homes an EPA pamphlet titled: “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools.” You can request copies of the pamphlets from the EPA. It also appears that you can download the pamphlet from the EPA Web site provided the information and graphics are legible. Have the owner sign the last page of the booklet certifying receipt and keep this page for your records. (Note: The form in the current EPA pamphlet contains an “opt-out” option; however, this provision has been eliminated from the law effective July 6, 2010).
  2. Signs. If abating lead paint, post signs at the project in a conspicuous place describing the renovation, state the dates the work will be performed and attach a copy of the “Renovate Right” pamphlet.
  3. Proof of compliance. Within 30 days following completion or final invoicing, provide a copy of lead abatement documents to the owner showing the preconstruction testing and the work that was performed. A proposed amendment to the law would require renovation firms to perform dust wipe testing after certain renovations and provide the results of this testing to the owner. This would ensure that your attempts at lead containment were successful.
  4. Record retention. You must keep records for three years of any renovations that fall within the parameters of the law. The EPA provides a checklist form to be completed for each project that should be kept with your project records in the event of a claim or audit. (http://epa.gov/lead/pubs/samplechecklist.pdf)
  5. Insurance coverage. Check your policy to see if testing and remediation are covered.
  6. Contractual language. While no specific contractual language is required by the EPA, you might want to modify your current renovation contract to provide language such as the following:
    a. Contractor will comply with all requirements imposed by the Environmental Protection Agency to minimize lead-based paint contamination.
    b. If the house was built prior to 1978, owner shall pay for all labor and material necessary for testing and remediation of lead-based paint, plus profit and overhead, in addition to the contract price or if the house was built prior to 1978, contractor is authorized to hire specialist to provide testing and remediation of lead paint at owner’s expense.
    c. By executing this contract, the owner certifies that they have received a copy of the pamphlet “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools” from contractor prior to start of construction.
    d. Owner agrees to share with contractor, prior to commencement of construction, all information from any previously conducted lead testing.
    While there is not a lot of money for the EPA to hire more enforcement officers, they are committed to somehow enforce the new law. In case you’re wondering, penalties for a violation are $32,500 per violation per day! And no, the fines are probably not covered by insurance.

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