November 18, 2010
NEW FEDERAL REGULATIONS ON LEAD-SAFE WORK
By: John Kasprak, Senior Attorney
You asked for information concerning new federal regulations on the performance of lead-safe work, including the painting of dwellings. You are concerned about the significant fines in the regulations and whether the state can modify these federal regulations. You also are interested in any neighboring states' activities on this issue. Finally, you want to know if there is any insurance available to small contractors to help with these possible large fines.
Common renovation activities like sanding, cutting, and demolition can create hazardous lead dust and chips by disturbing lead-based paint, which can be harmful to adults and children, according to the U.S. Environmental Protection Agency (EPA). As of April 22, 2010, EPA regulations require certification of renovation firms under the agency's “Renovation, Repair and Painting Rule” (RRP). The regulations also require that individuals be trained in lead-safe work practices, with the training providers accredited by the EPA. Violations of the law may result in fines up to $37,500 per violation, per day.
Generally, a state may not modify or amend federal regulations to make them less stringent. But EPA has the authority to allow states to administer their own lead-safe program to operate in lieu of the EPA regulations. To date, nine states have been granted this authority, including Massachusetts and Rhode Island.
Insurance products that may be available to a painting contractor concerned about the possibility of substantial fines under these new regulations include surety bonds and environmental insurance.
EPA LEAD-SAFE CERTIFICATION PROGRAM
EPA issued regulations on April 22, 2008 requiring the use of lead safe practices and other actions aimed at preventing lead poisoning. Under these regulations, beginning April 22, 2010, firms performing renovation, repair and painting projects that disturb lead-based paint in homes, child care facilities, and schools built before 1978 must be certified and follow specific work practices to prevent lead contamination. Firms doing such work must use certified renovators who are trained by EPA-approved training providers to follow lead-safe work practices (EPA Renovation, Repair and Painting Program (RRP); see 40 CFR Part 745).
Individuals can become certified renovators by taking an eight-hour training course, good for five years, from an EPA-approved trainer. Two hours must be hands-on training. The cost of such training is set by the training providers. Generally, contractors must use lead-safe practices and follow basic procedures such as containing the work area, minimizing dust, and cleaning up thoroughly.
Firms must be certified by EPA or by a state authorized by EPA to administer its own program (see below). Firms must submit an application to EPA along with a $300 fee. Firm certification is valid for five years.
Firms failing to comply with the federal regulations may face penalties of up to $37,500 per violation, per day.
EPA AUTHORIZED STATE PROGRAMS
EPA has the authority to permit states to administer their own lead-safe programs that would operate in lieu of the EPA regulations. Currently the following states have been authorized by EPA to operate their own program: Iowa, Kansas, Massachusetts, Mississippi, North Carolina, Oregon, Rhode Island, Utah, and Wisconsin. Below is more information about Rhode Island and Massachusetts.
The state has been operating a Lead-Safe Remodeler/renovator Program since 2001 and has licensed over 1,500 remodeler/renovators since its inception. Rhode Island was the first New England state granted authority by EPA (on April 20, 2010) to continue its state-operated program. In general, the Rhode Island program applies to any renovation, repair, or painting that disturbs six square feet or more of paint per room on the interior or 20 square feet or more of paint on the exterior of a pre-1978 house or child care facility. Examples of regulated activity include window replacement, remodeling, repair and maintenance, electrical work, plumbing, painting, carpentry, and any type of demolition.
Rhode Island's regulations differ from the federal regulations in a few key ways:
● Parents with children younger than six years of age must use a licensed lead hazard control firm. The owner cannot use the EPA opt-out provision.
● The lead hazard control firm must submit a start work notification to the RI Department of Health at least three business days before beginning work.
● A licensed lead-safe remodeler/renovator must be on site at all times.
● When the work is complete, a clearance inspection by a Rhode Island certified environmental lead inspector or technician is required. The inspection must include dust wipe samples analyzed by an approved laboratory. Once acceptable dust levels are reached, the inspector or technician issues a certification of acceptable clearance status.
Rhode Island's fines for noncompliance are lower than those under the federal law. (see Rules and Regulations for Lead Poisoning Prevention, RI Department of Health, Sec. 21.0; http://sos.ri.gov/documents/archives/regdocs/released/pdf/DOH/5928.pdf#page=25
On July 9, 2010, Massachusetts received approval from the EPA to administer and enforce its own lead safety standards for renovation, repair and painting work in lieu of the federal standards. Under the Massachusetts program, firms or other entities performing this type of work require licensure as “Lead-Safe Renovation Contractors,” except that the following may apply to the Massachusetts program for a
“Contractor License Waiver”: entities that (1) perform regulated work in facilities that they own, using their own employees; and (2) were certified by EPA prior to July 9, 2010.
Another difference between the Massachusetts program, administered by its Department of Occupational Safety (DOS), and EPA's involves on-site supervisor requirements. The EPA requires that the supervisor (“certified renovator”) be on-site only during certain phases of the work. Massachusetts requires that the supervisor be on site at all times when RRP work is in progress.
The Massachusetts DOS may fine $5,000 per day, per violation, any renovators not complying with the lead-safe work practices.
More comparisons between the Massachusetts and federal regulations can be found at: http://www.mass.gov/?pageID=elwdterminal&L=5&L0=Home&L1=Workers+and+Unions&L2=Licensing+and+Certification&L3=Lead+Program&L4=Lead+Documents&sid=Elwd&b=terminalcontent&f=dos_lead_RRP_comparison_epa_dos_rrp&csid=Elwd
POSSIBLE INSURANCE FOR SMALL CONTRACTORS
According to Best's Review (a monthly publication covering the insurance industry), there are a number of business insurance products. Some of these may be applicable to the situations presented in this report. Contractors may need surety bonds in order to undertake a project. One type of surety bond is a performance bond which guarantees the quality completion of work. Most surety bonds are issued through insurance agents and brokers. Some companies specialize in these, but most large property and casualty insurers have surety departments.
Another possible product is environmental insurance. Environmental statutes can stipulate fines or penalties without requiring that parties responsible for pollution be found negligent or at fault. This type of insurance generally protects against the financial costs of claims of injury or damage due to pollution, and the costs of clean up. Environmental insurance covers both property and liability. Types of environmental insurance include: site-specific, contractors, and asbestos and lead abatement contractors' general liability.
You may wish to contact the Connecticut Department of Insurance's for more information on these types of insurance. Its website is http://www.ct.gov/cid/site/default.asp