Publication

EPA Eliminates “Opt-Out” Provision and Delays Enforcement Action for Lead Renovation, Repair and Painting Rule Certification and Training

      In two separate actions concerning enforcement of the newly revised Lead Renovation, Repair and Painting Rule (“RRP Rule”), the United States Environmental Protection Agency recently announced that it was (a) removing a provision from the regulations that allowed owner occupants of pre-1978 homes to opt-out of having their contractors follow lead-safe work practices if there were no children under six years of age living in the home; and (b) was allowing firms and individuals additional time to obtain certification as lead-based paint renovators.

      The RRP Rule applies whenever renovation work is performed at residential homes, apartments, schools and day care facilities built before 1978. Renovation is broadly defined to include any activity that disturbs painted surfaces and includes most repair, remodeling and maintenance activities, including window replacement.

      Beginning on July 6, 2010, the lead-safe work practice requirements for contractors are required in all pre-1978 homes occupied by owners, regardless of whether there are children under six years of age living in the home. Prior to that date, owner-occupants of pre-1978 homes were able to opt-out of having their contractors follow the lead-safe work practices if there were no children under six years old living in the home. EPA’s removal of the opt-out provision is meant to prevent lead exposure for residents and visitors alike.

      Recent revisions to the RRP Rule mandated that as of April 22, 2010, all contractors and firms performing renovation work are required to be trained and certified in lead-safe work practices. According to a June 18, 2010 EPA enforcement memorandum, until October 1, 2010, EPA will not take enforcement action for violations of the firm certification requirement. For violations of the renovation worker certification requirement, EPA will not enforce against individual renovation workers if the person has applied to enroll in, or has enrolled in, by no later than September 30, 2010, a certified renovator class to train contractors in practices necessary for compliance with the final rules. Renovators must complete the training by December 31, 2010.

      Recent EPA RRP Rule enforcement actions have resulted in significant penalties and fines in the hundreds of thousands of dollars. Accordingly, contractors, owners and property managers should be aware that EPA will continue to enforce current work practice standards and the recordkeeping and information distribution requirements of the RRP Rule during the enforcement moratorium.

      Michael Parker is an associate with the Boston law firm of Rackemann, Sawyer & Brewster and practices in its environmental and land use department. Michael previously served as Senior Enforcement Counsel for the United States Environmental Protection Agency. For more information, he can be contacted at 617.951.1190 or mparker@rackemann.com