With everything that is going on in the world currently, and while there are still millions of homes out there that have lead paint in them, it is no surprise that all of this mess with coronavirus has led to quite a bit of confusion with regards to how this leaves contractors and others required to be RRP-rule compliant.
Lead paint is still an issue in millions of homes across the US and this page is a full summary of our recommendations for what to do to avoid RRP fines.
With everything going on, the EPA’s memorandum on March 26, 2020 recognized that Covid-19 could cause a labor shortage. Check out the infographic below, or read the entire article to see how we believe you best steer clear of nasty RRP fines.
It’s important to notice that the EPA’s policy regarding emergencies isn’t specific to Covid-19, nor does it officially recognize Covid-19 in itself being an emergency, but that it relates to all emergencies, and that their policy reflects a leniency regarding RRP certifications expiring after March 13, 2020.
From the memorandum, it is our belief that the EPA will avoid handing out fines if you are truly acting when it is believed to be an emergency, and you have properly documented why the said situation is an emergency.
If you do believe you are acting in the case of an emergency, we do encourage you to fill out the template as part of the documentation as to why the work performed was an emergency.
What work is covered under the exemption?
The EPA has the post-disaster RRP rule exemption – HOWEVER – this does NOT mean you can simply perform any type of home improvement.
It means that you can only perform certain types of work without having to comply with the RRP rule, and there are still requirements that you have to live up to.
There are certain types of work that may be done without complying with some of the RRP requirements, when in the case of an emergency:
- You may do work that is required to mitigate personal property.
- You may do work that is required to ensure the public health.
Under those conditions you are exempt from some of the usual RRP requirements:
- Containing lead dust
- The posting of warning signs
- Proper waste handling
- Information distribution
It is important to note that you are not exempt from the following requirements:
- The RRP’s recordkeeping requirements
- Cleaning, and cleaning verification
It is also important to note that the exemptions only apply to the portion of the work that is necessary to address the emergency, which means parts of the work may be covered by the exemption, while other parts aren’t.
I have not been able to renew my RRP certification with the coronavirus
If you go and read the announcement by the EPA, it is obvious that they are very well aware that there are contractors that have not been able to renew their certifications.
If your RRP certification expired no earlier than March 13, 2020 and you haven’t been able to renew it due to coronavirus, you may be able to continue RRP work until you can get your certification renewed, although you need to take steps to regain compliance.
Tips to avoid RRP fines
If you are either performing work that is exempt from the RRP regulation due to the Covid-19 natural disaster exemption, or because you haven’t been able to renew your certification here are our tips to ensure that you do not get a fine for the work you thought you were allowed to do.
- Document how the work helps mitigate public risk.
If the work you are doing is important to help contain significant health hazards, like encapsulating rapidly deteriorating lead paint because of a disaster, it is important that you document what sort of risk is being mitigated by the work that is being done.
If a building is at risk of collapse, sharp objects pose a health risk, structural components are currently weak, document how those risks could lead to people getting hurt. The key is to be as thorough as possible in your assessment, and document the various risks with photos, too.
- Document the various stages of work, and quantify which work you consider to be essential to mitigate the public health risk.
Although you may want to do an entire project, it is important to keep in mind that you may not be exempt from the RRP rule for certain parts of the project.
Break down the project into individual components and be realistic when you judge whether a part of a project is necessary to mitigate public risk or additional property damage.
If lead paint is peeling, this poses an immediate threat to the people living in the building. Remodeling a living room, on the other hand, wouldn’t constitute mitigation of risk for the inhabitants.
By breaking down and documenting all the work that the owner is asking for and make an assessment of which components can reasonably be said to meet the criteria outlined above.
- Estimate the level of health risk associated with not addressing the issue.
The importance of documenting why you are exempt from parts of the RRP rule is to show good faith.
What is the risk associated with doing nothing, what impact will it have, and what time frame are you looking at before the risk is likely to end in a catastrophe?
If you are dealing with the potential of a roof collapsing, provide the reasons why you believe this is a serious concern, what signs you are seeing and what time frame you are estimating that this could happen under.
Although you still think it might be a handful of years before a roof would collapse, you are still erring on the side of caution, providing reasonable assistance to ensure the roof doesn’t suddenly fall onto the roof of its residents.
- Estimate the type of health risk associated with not addressing the issue.
This point is more so to justify that the EPA should choose to agree with your reasoning for exemption should they choose to audit your records. The reason here is to argue fairness and that the measures taken are appropriate given the level of risk.
If the entire house was flooded, it would be relevant to take the necessary action to prevent the additional spread of water damage and mold growth, whereas if one area of the house had a small water spill, you cannot reasonably argue that the entire floor should be replaced across the house, without first assessing whether there was a risk for the water spill to also affect other areas of the house.
- Estimate the likelihood of additional damage associated with doing nothing.
If you are arguing that a roof that was installed 5 years ago needs to be replaced to address a public health concern, you need to ensure that you have your documentation in order. In cases where someone else may question whether or not you are doing more work than would be permissible under the exemption, make sure that you back up your argumentation with the necessary photo evidence.
- Provide reasonable input on the actions that should have previously been taken to mitigate the risk.
While this may seem excessive, we believe that additional documentation is what will keep you safe in the case of an audit.
Explain why the lack of such actions now warrant an exemption from aspects of the RRP rule.
If a roof should have reasonably been replaced 10-20 years ago and it has now been damaged by a severe storm, we encourage you to provide information the negligence warranting classifying the home improvement as an emergency situation.
- Document your contact with the customer.
If you can prove that you only started having contact with the customer after Covid-19 became an actual threat, it is our belief that you stand a better chance arguing that it should be considered an emergency to do the work. If you were first contacted by a customer over email, attach a copy of the email to the template, and attach subsequent copies of contact also.
If you were first contacted by phone, we encourage you to send an email to the customer where you reference your initial time of contact as mentioned below.
“Dear Mr. Johnson,
You contacted us on June 30th, 2020 about your roof replacement, and why having this done is an emergency. I wanted to follow up in writing to ensure everything is properly documented to make sure we have properly understood the various aspects of the job.”
- Provide justification for each step of your documentation.
If a customer requests that your company does more than one type of work for them, we encourage you to individually document each type of work and why it warrants being considered an emergency to have it fixed.
- Estimate the loss to property value by not doing anything.
It is important to realize that this is likely going to be the weakest argument in favor of the exemption of the RRP rule, why it must be treated as such, and why we have addressed it so far down on the list as well.
The EPA says that the exemption of the rule involves companies addressing urgent safety and public health hazards and threats of significant property damage, with significant property damage being the last cause mentioned on the list.
This makes sense as the RRP was introduced as a safety measure rather than a measure instituted to ensure property value, why your argumentation should focus on the various safety aspects first.
It’s also important to mention that the EPA has specified the following on their website:
“Once the safety and public health hazards and threats of significant property damage have been addressed, the emergency provision can no longer be utilized.”
The above mentioned sentenced clearly shows that the intention of the exemption is to ensure the health and well-being, in terms of limiting lead exposure and other exposures that could cause health risks, and that arguing significant property damage is a lot harder.
- Make sure that you look out for EPA updates.
We encourage you to visit the EPA’s official page to ensure that you are staying up to date on what the most current dates are that you need to be aware of.
We strongly expect that the EPA will announce dates for when these exemptions will no longer be as broadly interpreted as is the case currently. It is important to note, that as per the memorandum sent out on March 26, the EPA only assures that a week’s notice is given prior to the termination of special conditions.
- Make sure that you can verify the date of your documentation.
If you have chosen to use our template to justify why an emergency warrants you being non-compliant with the RRP, we encourage you to take a photo of the printed out documentation with some sort of proof of the date that it was filled out.
Photos taken with modern phones will usually save information regarding when a photo was taken that will show that you acted in good faith and didn’t simply fill out forms retroactively, but did it when the work was being done.
- Document reasons why compliance is not reasonably practicable.
This could be supported with the inclusion of information of worker shortages during the pandemic, as the EPA’s memorandum has recognized that as being a possible problem currently.
- Document steps taken to come into compliance at the earliest possible opportunity.
Show how you acted in good faith and tried staying compliant. If you had your RRP certification expire after Marcy 13, 2020, show how you continuously tried taking steps towards regaining compliance.
- Document the steps taken to ensure proper safety measures were taken.
It is important to mention that the memorandum and emergency program upon which these recommendations have been based, are worded very loosely, why we can only recommend that you document as best as possible to ensure that you show an intent to live up to the usual requirements of the RRP, including the various safety measures typically required under the RRP rule.
The EPA has stated that they do not seek to fine people for violations related to a bunch of activities, if you can document that Covid-19 was the reason for noncompliance.