Beginning next month, rental property owners, construction firms and contractors will need to pay heed to the U.S. Environmental Protection Agency’s new Renovation, Repair, and Painting Rule, 40 CFR 745.80 through 40 CFR 745.92. (For more information see http://www.epa.gov/lead/pubs/renovation.htm.) This rule requires all renovations or dust sampling activities at single family homes, multi-family housing and child-occupied facilities (e.g., day-care centers, pre-schools and kindergarten classrooms) built before 1978 to be performed by a certified firm (broadly defined to include a company, partnership, corporation, sole proprietorship or individual). In addition, the rule requires that all persons actually performing the renovation work be certified or receive on-the-job training from (and perform work under) the direction of a certified renovator. It is anticipated that hundreds of thousands of individuals and businesses will need to be certified before the rule takes effect on April 22, 2010.
1. What types of facilities will be subject to the rule?
The rule defines child-occupied facilities as residential, public or commercial buildings where children under age six are present on a regular basis and that were built prior to 1978, including, but not limited to: 1) homes; 2) apartment complexes; 3) schools; and 4) day-care facilities. Housing constructed after 1978, zero bedroom units (e.g., studio apartments or dormitories) and facilities deemed lead-free by a certified inspector are not subject to the rule.
2. To whom will the rule apply?
The rule applies to anyone who receives compensation for renovation work, which generally includes activities modifying an existing structure and resulting in the disturbance of painted surfaces (e.g., surface preparation activity, HVAC duct work, weatherization activities, removal of building components). Compensation is broadly defined to include: 1) payment to specialty contractors (e.g., painters, plumbers, electricians) for work completed; 2) payment of wages to employees performing the work, even wages paid to a government or nonprofit’s employees; and 3) rental payments to property owners/landlords. As a result, general contractors, specialty contractors, employees and owners of rental properties all could fall within the scope of this rule.
NOTE: Minor or de minimis repair and maintenance activities disturbing six square feet or less of paint in an interior room, or 20 square feet or less outside, are not subject to this rule. Window replacement, however, is not considered a minor maintenance or repair.
3. How does a person completing renovation work comply with the rule?
Compliance with the rule starts with proper training and certification. All firms engaging in renovation work must apply to the U.S. EPA for certification in order to perform renovations and/or dust sampling. Certification requires completion of an application and the payment of a fee. For an individual, certification involves successful completion of an eight-hour training course from an accredited training provider. For individuals already accredited as a lead abatement worker or supervisor through U.S. EPA or HUD, only a four-hour refresher course is required. Certification must be renewed every five years.
NOTE: In Ohio, certification flows through the Ohio Department of Health. To ensure there are enough certified persons in Ohio prior to April 22, 2010, the Ohio Department of Health is offering the training course for between $10 and $100. The training courses will be held in various locations in the State throughout 2010. Specific information about training courses can be found at http://www.development.ohio.gov/cdd/ohcp/WhatsNew.htm (click on “2010 Lead Abatement Training Program”). Additional information about the new rule is available from the Ohio Department of Health’s Lead Poisoning Prevention Program at (877) NOT-LEAD or LEAD@odh.ohio.gov.
The certified renovator must abide by certain lead work practice standards (e.g., work area containment, dust minimization and thorough clean up). For renovation work at single family and multi-family residences, the individual renovator (or firm) must distribute pamphlets available from the U.S. EPA to the owner and occupant of the building. Informational signs also must be conspicuously posted regarding the work. For renovation work at child-occupied facilities, pamphlets must be distributed to the property owner as well as an adult representative of the business if the building owner and business owner are different. The renovator (or firm) must then receive written confirmation that the pamphlet was mailed or received. Additionally, parents or guardians of the children at those facilities must be notified through distribution of the pamphlets or the posting of informational signs in areas where parents and guardians are likely to see them.
Perhaps most onerous are the recordkeeping requirements, which require firms to keep a number of records relating to training, certification and completed work for three years.
4. What happens if a firm does not comply with the rule?
Because the U.S. EPA implemented the rule under the Toxic Substances Control Act, it retains the authority to inspect work sites, review records and reports, and respond to citizen tips and complaints. A violation of the rule can result in suspension or revocation of a renovator’s certification. In addition, an enforcement action could be undertaken by the U.S. EPA (or a state if the program’s undertaking has been delegated) against the firm completing the renovation work with possible penalties of up to $32,500 per day. The U.S. EPA, however, encourages persons to voluntarily disclose and correct violations prior to discovery by the U.S. EPA. Certain compliance incentives also are available to small businesses (less than 100 employees).