As reported in a number of industry media outlets, including The Wall Street Journal, last Friday the Environmental Protection Agency (EPA) delayed enforcement of the Renovation, Repair and Painting Rule or so-called "lead paint law." Unfortunately, once more the EPA seems to have an odd inability to understand its own law, or the industry to which it applies, and the reporting by trade organizations and certain media outlets of a "delay in the lead paint law" is simply wrong.
The law has not been changed or amended in any way. On June 18, the EPA issued an internal "guidance" memorandum to its Enforcement Division Directors. This memorandum informs the EPA regional offices that (i) contractors who have failed to register as Renovation Firms with the EPA have until Oct. 1 before they are at risk of being fined for that violation; and (ii) individuals who have failed to obtain licensure as Certified Renovators with the EPA have until Sept. 30 to sign up for the training, which training must then be completed by Dec. 31.
This memorandum was issued as the result of increasing political pressure on the EPA, and bad publicity, over the means and manner in which the Renovation, Repair and Painting rule was being implemented despite the failure of the majority of contractors in the United States to have yet to come into compliance with the rule.
What few seem to have understood is that this memorandum only addresses the EPA's intentions in assessing fines for these licensing issues. Indeed, the memorandum continues on to state that the EPA will otherwise "continue to enforce the work practice requirements in the rule..." In other words, the EPA is still going to enforce the requirements to test for lead paint and perform lead-safe work practices.
What the EPA meant by this and what the memorandum actually says may be two different things. We cannot try and interpret what the EPA means, but what the memorandum states is that the EPA expects lead safe practices to be performed as required by law--you just do not need to be licensed as a Renovation Firm or use a Certified Renovator in doing the lead-safe work practices, for the time being.
Of course, such a situation is contradictory on its face. How can a contractor, not trained in lead-safe work practices, properly perform and certify he or she has conducted lead-safe work practices? The potential liability from this is nightmarish.
If the inverse is true, and what the EPA meant was that unlicensed contractors do not need to comply with the law until this fall, then the memorandum should have stated that. (It does not.). Of course, it is hard to conceive of a more inherently improper and unfair result than this.
Surely the EPA would not suggest that it is acceptable to punish those contractors that spent the time and the money to come into full compliance with the law by the April 22 deadline by forcing them to conduct lead safe work practices on a given job (and price accordingly for that), while Bobby Bag-of-Donuts does not have to? Of course, at the state level, contractors should also note that this delay in fines is inapplicable in regard to those states that have now implemented their own form of the Renovation, Repair and Painting Rule, such as Iowa, Kansas, Mississippi, North Carolina, Oregon, Rhode Island, Utah, and Wisconsin.
Finally, and perhaps most concerning, is the fact that while the EPA may be willing to forego imposing fines on unlicensed contractors for the time being, that does not change the law--which still requires a contractor to have such licensure, and perform lead-safe work practices on a home as required.
That the EPA is not going to fine a contractor has nothing at all to do with the fact that the contractor is still bound by the law, and can be sued by the consumer for violating that law under many state consumer protection statutes and legal theories.
Accordingly, we strongly suggest contractors continue on with their established lead paint protocols. Any contractor not yet properly licensed as a Renovation Firm or failing to use installers licensed as Certified Renovators should move to remedy that as soon as possible.
D.S. Berenson is a managing partner at Johanson Berenson LLP in Great Falls, Va. He specializes in home improvement business and corporate law. Contact him at firstname.lastname@example.org.