RRP Legal Opinion Letter
Below is a legal opinion letter from Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A concerning the Renovation, Repair and Painting (RRP) rule. We had this done as we, Check4Lead.com, wanted to better understand RRP.
Managing Member
Echo Ray, LLC d/b/a Check4Lead.com
May 13, 2010
VIA EMAIL
Managing Member
Echo Ray, LLC d/b/a Check4Lead.com
3208 S. Colonial Drive, #308
Orlando, Florida 32803
RE: The Environmental Protection Agency’s Rules Concerning Lead Testing In Renovation Projects..
Dear Managing Member:
The Environmental Protection Agency (the “EPAâ€) has implemented a series of regulations that are designed to reduce the chances of lead poisoning resulting from residential renovations pursuant to its authority under the Toxic Substances Control Act. See 15 U.S.C. § 2682 et. Seq. and the regulations implementing the Act at 40 C.F.R. § 745.80 – 745.92. The most recent revision to these regulations is the Lead Paint Renovation, Repair, and Painting Rule which went into effect on April 22, 2010 (the “RRP Ruleâ€). The RRP Rule require contractors who perform remodeling or renovation work that may disturb lead paint to become certified through an EPA-accredited certification program and imposes a series of other requirements on renovation projects.
Remodeling projects that are subject to these requirements include “target housing†(nearly all housing constructed before 1978 including rental properties) and child-occupied facilities constructed before 1978 (including non-housing structures). Renovation projects for target housing and child-occupied facilities must comply with a series of requirements to completely isolate the work area to prevent dust and debris from escaping, use HEPA filtering to trap dust, cover all furniture and objects for interior renovation, cover ground areas for exterior renovation, avoid flame burning or torching of paint or certain heat guns, follow a series of procedures for waste removal, a further set of procedures for post-renovation clean-up and other procedures provided in the RRP Rules.
Failure to comply with these procedures can subject the contractor to serious penalties including fines of up $37,500 per violation, per day under 15 U.S.C. § 2615(a). Where violations are found, the EPA may also suspend or revoke a contractor’s certification, thus preventing the contractor from performing future renovations on target housing and child-occupied facilities. See 40 C.F.R. § 745.91. In addition to the civil penalties, contractors who violate these provisions may also be subject to criminal penalties including sentences of up to one year in prison under 15 U.S.C. § 2615(b).
There are several exceptions that allow contractors to avoid the difficult requirements for complying with the RRP Rule and the serious penalties associated with failure to comply.1 One of the exceptions to the RRP Rule states that the RRP Rule does not apply to:
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Renovations in target housing or child-occupied facilities in which a certified renovator, using an EPA recognized test kit as defined in §745.83 and following the kit manufacturer’s instructions, has tested each component affected by the renovation and determined that the components are free of paint or other surface coatings that contain lead equal to or in excess of 1.0 mg/cm2 or 0.5% by weight. If the components make up an integrated whole, such as the individual stair treads and risers of a single staircase, the renovator is required to test only one of the individual components, unless the individual components appear to have been repainted or refinished separately.
See 40 C.F.R. § 745.82(2). As of the date of this letter, the LeadCheck® lead testing kits available through the Check4Lead.com site are the only commercially available EPA recognized lead testing kits.2 Contractors who us the testing kits sold by Check4Lead.com and who confirm that the components on which work is to be performed are free from paint or other surface components that contain lead do not have to comply with the series of work site isolation requirements, disposal requirements and clean-up requirements of the RRP Rule. To qualify for this exception, the contractor performing the testing must have become a certified renovator by completing an EPA-approved certification course. The information concerning the lead test, including the brand of test kit used, the locations on which tests were performed and the results of the test must be kept for at least three years following the end of the renovation project.
The most significant advantage of qualifying for this lead testing exception is that it allows the contractor to eliminate the serious civil and criminal penalties associated with a failure to comply with the isolation, disposal and clean-up requirements of the RRP Rule on a renovation project. In addition to avoiding potential liability under the RRP Rule, contractors who meet this exception will also avoid the loss of time and costs required for compliance with the RRP Rule.
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The exception discussed in this portion of the letter only applies to the federal Toxic Substances Control Act. Certain states have laws that may impose additional requirements for lead-related renovation that are not addressed in this letter.
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A second kit is available for inspectors in the state of Massachusetts but is not available for purchase by the public.
Very truly yours,
Stephen Luther
SHL/ods