On August 26, 2009, USEPA announced revisions to its existing Lead Paint Rule adding lead safe work practices and other protective requirements for renovation and painting work involving lead paint in homes, child care facilities and schools built before 1978. The revised rules go into effect April 22, 2010 and are set forth in updated “Lead Renovation Repair and Painting Rule” (the “Rule”). The Rule requires renovation firms to conduct tests to ensure lead levels in dust comply with EPA’s regulatory standards after activities are performed and to inform building occupants regarding lead safe work practices utilized. Owners, operators and managers of covered facilities may have liability for violations of the Rule even if they use third party contractors. Multi-million dollar penalties administrative penalties have been imposed by USEPA against landlords and property managers for failure to disclose the potential presence of lead paint under the former version of the Rule.
Effective April 22, 2010, remodelers working on homes, home daycare centers or any other "child-occupied facility" built before 1978 must be certified, follow specific "lead safe" work practices to prevent lead contamination and keep detailed records for at least three years following completion of covered work to verify that they followed the Rule. (A "child occupied facility" is defined as a residential, public or commercial building where children under age six are present on a regular basis). In addition, as of April 22, 2010, the "opt out" provision, which allowed homeowners to sign a waiver stating that there were no children or pregnant woman in the home, will be eliminated meaning that a contractor cannot avoid compliance with the lead safe work practices by relying on a waiver from a homeowner. Contractors may still avoid having to comply with lead safe work practices if the home is first tested and certified to be lead free by the appropriate inspectors.
All contractors working in homes, housing units, child care facilities and schools built before 1978 must be USEPA certified and follow specific work practices to prevent lead contamination when working in such facilities. Although this requirement applies to any contractor who “disturbs” six square feet or more of painted surface in the inside of such a facility or 20 square feet on the outside of such a facility, according to the National Association of Home Builders, few subcontractors associated with home renovation and remodeling are aware of the new Rule. Firms engaging in work covered by the Rule must have at least one person on staff who is trained in lead-safe work practices. Remodeling companies must be certified as trained by the USEPA and the training and certification have to be renewed every 5 years. USEPA began accepting and processing applications for certification of renovation firms on October 22, 2009. The Rule also applies to property owners who themselves renovate, repair or prepare surfaces for painting in pre-1978 rental housing or space rented by child-care facilities, instead of using renovation contractors.
On or about April 22, 2010, USEPA is expected to make the requirements even more stringent for post-project clearance by a third party instead of by contractors to confirm that no dangerous levels of lead were released by the renovation, repair or painting work.
This Client Alert has been prepared by Lewis and Roca LLP for informational purposes only and is not legal advice. Readers should seek professional legal advice on matters involving these issues.
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