6 Ways to Legally Avoid the EPA’s New Lead Based Paint Renovation Laws

Posted on: November 13, 2010

Categories: How To, Ideas

Author: buyfixandprofit

Should you be afraid of trying to comply with the EPA’s new lead based paint laws?  I have heard several real estate investors offer up many different opinions on this topic.  Based on the fines involved, I would not willfully violate these laws whether you like them or not. The six ideas presented below are derived directly from the EPA’s FAQ website.

The good news is that only one in four homes built after 1950 has lead based paint.  Depending on your city, this may not affect you very much.

The first thing you have to do is pay $300 to have your firm lead based paint renovator certified; which is strictly a fee in order to get on the EPA’s approved list and receive an approved vendor certificate.  Then, the newly certified firm has to pay to have their workers or supervisors trained on the “new laws” by a certified instructor trained by the EPA.

Fines for violations for the EPA Lead laws start at $37,500 per day of work! This goes up if they can prove that you knew about the law and went ahead with the work anyway.

As you will see from the FAQ’s, the EPA has decided that these rules do not apply to homeowner’s working on their home or to someone volunteering their time.   The law only applies if there is compensation involved – interesting?

How to Avoid Dealing with the EPA’s Lead Removal Rules

  • Only buy and fix houses built after 1978
  • Have the home tested and keep your fingers crossed (only 1 in 4 homes after 1950 have lead based paint)
  • Do not disturb more than six square feet of interior surface or more than twenty square feet of exterior surface
  • Gut rehab the entire house (reference question 6865 below)
  • Have the tenant do all the repairs, landlord just pays for the material and tools (you can’t reduce the tenant’s rent though, remember no compensation for labor)
  • Have your brother or friend perform the work for free

As you can see, there really isn’t a great solution here and the last two options aren’t very realistic.  You either have to get your own crews certified and trained or wind up paying a premium for a certified subcontractor.  Should you take the risk of ignoring the new law all together?  Be careful.  What are you going to do when your FHA approved buyer needs proof for his loan underwriting that the home was properly renovated under the new EPA guidelines?  Don’t think this can’t happen.

Here is what the new Lead Renovation, Repair, and Painting Rule (RRP) actually says:

EPA regulations now mandate that any contractor or maintenance staff, from plumbers to electricians to painters, who disturbs more than six square feet of lead paint, replaces windows or does any demolition while working in a pre-1978 home, school or day-care center, must now be Lead-Safe Certified and trained in lead-safe work practices. If not, you could face tens of thousands of dollars in fines. These regulations are now the standard of care for the industry and complying with them will reduce your chance of being involved in potentially “expensive lawsuits”.

Valuable Link to Materials and Downloads for Renovators on Renovation, Repair and Painting

http://www.epa.gov/opptintr/lead/pubs/lscp-renov-materials.htm

Below are the most interesting and relevant facts from the EPA’s FAQ website that would be of most interest to rehabbers, flippers, landlords, and property managers.

http://www.epa.gov/lead/pubs/rrp-faq.pdf

Question (6865)

If all or a portion of a pre-1978 housing unit has been gut-rehabbed after January 1, 1978, as evidenced by property owner and/or other verifiable documentation, do the RRP Rule requirements apply to work in that unit?

Answer

EPA believes that whole house gut rehabilitation projects may demolish and rebuild a structure to a point where it is effectively new construction.  In this case, it would not be a modification of an existing structure, and therefore not a renovation.

Question (5861)

How can homeowners protect themselves and their families from exposure to lead dust if they plan on doing their own renovations?

Answer

The RRP Rule does not impose requirements on homeowners performing renovations in their own homes. If you do decide to do a renovation yourself, it’s very important to take precautions to protect you and your family from exposure to lead dust.  EPA recommends that you follow these simple procedures:

  • Contain the work area so that dust does not escape from the area.  Cover floors and furniture that cannot be moved with heavy duty plastic and tape, and seal off doors and heating and cooling system vents;
  • Keep children, pregnant women, and pets out of the work area at all times;
  • Minimize dust during the project by using techniques that generate less dust, such as wet sanding or scraping, or using sanders or grinders that have HEPA vacuum attachments which capture the dust that is generated; and
  • Clean up thoroughly by using a HEPA vacuum and wet wiping to clean up dust and debris on surfaces and wet mopping the floors with plenty of rinse water before taking down plastic over doors, windows, and vents.

Question (6836)

If a renovator is only reimbursed for materials, would that be considered compensation?

Answer

No.  Compensation includes pay for work performed, such as that paid to contractors and subcontractors; wages, such as those paid to employees of contractors, building owners, property management companies, child-occupied facility operators, State and local government agencies, and non-profits; and rent for target housing or public or commercial building space.  Reimbursement for the cost of materials is not compensation.

Question (6837)

Is work done by friends, a brother-in-law, or volunteers covered by the RRP Rule if no one is compensated?

Answer

No.  The RRP Rule only applies to renovations performed for compensation.

Question (7009)

When repainting rental housing, if the landlord supplies the paint and materials, and the tenant does the labor without receiving money, credit toward rent, or other compensation, does the RRP Rule apply?

Answer

No.  The RRP Rule only applies to renovations performed for compensation.

Question (6703)

If I rent out apartments built before 1978, do I need to get firm and renovator certification if I do my own work on it?  What if I hire a renovation firm to do the work?

Answer

With respect to landlords, EPA believes that there are two circumstances where work being done in pre-1978 apartment is for compensation such that the landlord must be a certified firm and use (or be) a certified renovator.  First, if the landlord does the renovation him or herself, then the landlord must have firm and renovator certification.  Second if an employee of the landlord does the renovation work, then thelandlord must have firm certification and the employee must be a certified renovator.  However, if the landlord hires a renovation firm to perform the renovation, the landlord does not need firm or renovator certification, but the firm hired by the landlord must be certified and must perform the renovation using a certified renovator that directs and provides on-the-job training to any workers that are not certified renovators.

Question (6865)

If all or a portion of a pre-1978 housing unit has been gut-rehabbed after January 1, 1978, as evidenced by property owner and/or other verifiable documentation, do the RRP Rule requirements apply to work in that unit?

Answer

If only a portion of the unit has been gutted, the RRP Rule applies unless you have determined that the components affected by the renovation are free of paint or other surface coatings that contain lead equal to or in excess of 1.0 milligrams per square centimeter (mg/cm2) or 0.5% by weight.  This determination must be made either by a certified inspector or risk assessor, or by a certified renovator using an EPA

recognized test kit.  You must keep records of any lead-based paint free determination and make the records available to EPA if requested.   EPA believes that whole house gut rehabilitation projects may demolish and rebuild a structure to a point where it is effectively new construction.  In this case, it would not be a modification of an existing structure, and therefore not a renovation.

Question (6694)

Does the RRP rule apply to simple painting activities that occur when rental properties turn over?

Answer

No. If there is no surface preparation that disturbs the existing paint prior to painting, the RRP Rule does not apply.  If you disturb paint by scraping or sanding while preparing the surface, the RRP Rule applies.

Question (6832)

My firm is performing a renovation in an unoccupied home that will be put up for sale when work is done.  Does the RRP Rule apply to this renovation?

Answer

Yes.  Temporarily unoccupied or vacant housing is not exempt from the requirements of the RRP Rule.

Question (6659)

Is it a violation of the RRP Rule for a homeowner to hire a firm that is not certified?

Answer

The RRP rule does not impose requirements on homeowners, unless they are performing renovations in rental space. However, the hired firm would be in violation of the RRP Rule if it was uncertified and performing a covered renovation.

Question (6949)

I have hired a firm to renovate my home, but now I am concerned about whether the firm is a lead-safe certified firm.  How can I find out?

Answer

EPA has a searchable database to help you locate lead-safe certified firms near you at:

http://cfpub.epa.gov/flpp/searchrrp_firm.htm.  It is possible that your firm is not yet listed on EPA’s web site, but is certified.  If you do not find your firm on EPA’s web site, you should call EPA’s lead hotline at 1-800-424-LEAD (5323) and speak to an expert who can help you find out whether your firm is certified.

Question (6802)

Does the RRP Rule require a certified state lead inspector or risk assessor, who does not do renovation work, to become a certified renovation firm in order to take dust wipe samples?

Answer

No.  A certified inspector or risk assessor may make determinations regarding the presence of lead based paint at a renovation site without becoming certified as a renovation firm.

Question (6803)

Is the fee for firm certification waived for self- employed individuals or landlords?

Answer

No.  Congress requires EPA to impose a fee on certified contractors that is sufficient to recover the costs of administering and enforcing the RRP Rule.  All applicants for firm certification must submit the $300 fee as part of their application.  A firm’s certification is effective for 5 years.

Question (6677)

Does the term “target housing” mean just low income housing, or any home built before 1978 regardless of the financial status of the occupants?

Answer

“Target housing” means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than six years of age resides or is expected to reside in such housing) or any 0-bedroom dwelling.  The income of the occupants of the housing is not relevant.

Question (7203)

If a project disturbs six square feet or less of interior surface or twenty square feet or less of exterior surface, is it necessary for a firm to comply with the pre-renovation education requirements, such as distributing the pamphlet?

Answer

No.  A project that disturbs six square feet or less of interior painted surface or twenty square feet or less of exterior painted surface is not considered a “renovation” under the Rule. It is considered a minor maintenance and repair activity.  As long as this type of disturbance does not involve any prohibited work practice, window replacement or demolition of painted surfaces, a firm need not comply with the pre-renovation education requirements.

Question (6992)

When renovating a common area in an apartment building, must my firm provide pre-renovation education to all tenants?

Answer

Yes.  Firms performing renovations in common areas of multi-unit housing must comply with the information distribution requirements before beginning renovation activities.  The firm must provide the owner of the common area being renovated (generally the building owner) with the “Renovate Right” pamphlet and obtain a written acknowledgement of receipt.  The firm must also provide the occupant of each individual unit affected by the renovation with information describing the general nature andlocations of the renovation and the anticipated completion date.  The firm may comply with this requirement either by mailing or hand-delivering the pamphlet and information to each unit, or by posting informational signs while the renovation is ongoing describing the general nature and locations of the renovation and the anticipated completion date.  For additional information on these requirements, visit

http://www.epa.gov/lead/pubs/sbcomplianceguide.pdf.

Question (6666)

Can you list specific activities deemed a disturbance of painted surfaces?

Answer

As a general matter, EPA believes that activities that create dust or paint chips are activities that disturb paint.  There is no definitive list of activities that disturb painted surfaces.  Some examples that can disturb painted surfaces include, but are not limited to:

  • Making cut-outs in walls.
  • Replacing a window from the inside or outside.
  • Removing paint with a heat gun.
  • Scraping paint.
  • Removing kitchen cabinets.
  • Removing paint by abrasive sanding.
  • Removal of large structures, including demolition of interior plaster walls.
  • Window replacement.
  • HVAC repair or replacement, including duct work.
  • Repairs resulting in isolated small surface disruptions, including drilling and sawing into wood and plaster.
  • Scuff-sanding.

These activities and other activities which disturb paint could be relevant to many trades, such as (but not limited to) renovation, remodeling, general repair, general maintenance, plumbing, electrical work, carpentry, window installation, painting, weatherization work, and more.

Please feel free to leave your comments and vent about either how difficult this making life for you or if you plan on complying at all??

pixel 6 Ways to Legally Avoid the EPA’s New Lead Based Paint Renovation Laws

LEAVE A COMMENT:  2 Comments

2 Responses to “6 Ways to Legally Avoid the EPA’s New Lead Based Paint Renovation Laws”

  1. joe says:

    Reading thought the epa curriculum, there is a page that talks about a “opt-out” provision.where the owner can noy require a contract to abide by the RRP. Is this true? I couldnt find any place to download a form. I guess i will make my own.

  2. Mel Metts says:

    Some of your advice could lead your readers to financial ruin. Three of your “legal” ways to avoid complying with the law are not legal at all.

    # Have the tenant do all the repairs, landlord just pays for the material and tools

    This WOULD BE legal if the tenant did the work for zero compensation. However, if the landlord offsets the tenant’s rent or provides some other form of barter, the Rule applies.

    # Have your brother or friend perform the work for free

    This violates the Rule. As the owner of property purchased for investment, the owner is obligated to ensure that the work is performed by a Certified Renovator. Doesn’t matter if the work is performed for free; the owner is expecting to profit and so the Rule applies.

    # Gut rehabs the entire house

    So what? Gut rehabbing the entire house is still covered by the Rule. The work must be performed by a Certified Renovator and Certified Firm, following lead-safe practices.

    I am EPA-Accredited and teach the Lead Safe Renovator Class. Anybody who follows your advice is asking to be fined.

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