On March 31, 2008, the United States Environmental Protection Agency (“EPA”), under the authority of the federal Toxic Substances Control Act, issued new rules governing home improvement contractors and maintenance companies engaged in the renovation and repair of houses, child‑care facilities and schools constructed before 1978. The purpose of the rule is to protect children from lead paint hazards in places they frequent. EPA’s rules require that by April 2010, contractors and maintenance professionals performing renovation activities be certified and their employees trained by certified renovators. The rules also require that these companies use safe work practices to eliminate airborne lead exposure from the renovation activities.
The rule applies to home improvement contractors, maintenance workers in multi‑family housing, painters and other trades engaged in renovation activities. The covered facilities include residential, public or commercial buildings where children under the age of 6 are present on a regular basis, as well as all rental housing. The rule applies to renovation, repair or repainting activity. The only exceptions are (i) owner‑occupied housing where children under six or a pregnant woman do not reside; (ii) minor maintenance or repair activities affecting six square feet or less of lead based paint in a room or 20 square feet or less of lead based paint on the exterior of a building and (iii) renovations that do not involve the disturbance of lead based paint. Determining whether a project is lead free must be made by a certified renovator using an EPA recognized test kit.
The rule prohibits certain unsafe work practices such as flame burning or torching; and sanding, grinding, or blasting with power tools. It also prohibits the use of equipment not equipped with high efficiency vacuum attachments to minimize or eliminate airborne dust.
A certified renovator must be assigned to each renovation project to direct and train uncertified workers and to insure that all work is performed in accordance with applicable work practices and standards as outlined in the rules. A renovator can become certified by successfully completing an EPA approved accredited training course. To maintain the certification, a person must complete an accredited refresher course every five years.
While these regulations directly impact the companies doing the renovations, property owners must remember that they are ultimately responsible for the safety of their tenants. It is imperative, therefore, that property owners make sure that the contractor intends to comply with the EPA’s regulations and minimize lead hazards during the work. Any contract between the property owner and renovation contractor should, at a minimum, include a provision requiring the contractor to comply with all laws during the performance of the work and an indemnification provision whereby the contractor agrees to defend and indemnify the property owner from lawsuits arising from the contractor’s work. Since an indemnification is only as good as the company’s assets, a property owner is well advised to require the contractor to have insurance naming the property owner as an additional named insured on the policy. As an additional named insured, the property owner will be in a position to make a claim against the contractor’s insurance policy. By taking these precautions, property owners will minimize their exposure to potential liability if the contractor fails to comply with these regulations.