Revisions to 2008 Lead Renovation, Repair and Painting (RRP) Rule Implemented

The RRP rule is intended to prevent children and adults from unsafe exposures to lead that can occur when lead-based paint is disturbed during renovations and similar work. The RRP rule established accreditation, training, certification and record-keeping requirements for contractors and businesses performing renovation work involving lead-based paint. Additionally, the RRP rule created a number of specific work practice standards.

EPA proposed a number of revisions to the RRP rule that took effect on October 4, 2011. Most of the changes concern training accreditation and other technical aspects of performing renovation work. Importantly, however, the revisions impose mandatory enforcement provisions for State and Tribal compliance programs. Since Washington and Oregon both have delegated authority to implement the RRP rule, these provisions are an important reminder of each state’s enforcement authority and the consequences of non-compliance with the RRP rule.

EPA now requires states to have the legal authority to take each of the following enforcement and compliance actions for violations of the RRP rule:

• Through consent, warrant, or other authority, to enter and inspect houses and other facilities where lead-based paint violations may occur, to enter a contractor or firm’s place of business and work site, and to take samples and review records;
• To issue warning letters, Notices of Noncompliance, Notices of Violation or the equivalent;
• To assess administrative or civil fines including a maximum fine of no less than $5,000 per violation per day;
• To assess maximum penalties or fines for continuous violations, including the authority to assess maximum fines for each day that a violation exists;
• To commence administrative proceedings or sue in court to recover penalties;
• To suspend, remove, or modify the accreditation of trainers or the certification of any individual or firm;
• To commence administrative proceedings or sue in court to enjoin any threatened or continuing violation of any program requirement;
• To apply criminal sanctions, including recovering fines; and,
• To enforce its program using no greater burden of proof, including the degree of knowledge or intent of the alleged violator, than exists for EPA under the Toxic Substances Control Act.

Oregon and Washington’s existing enforcement authorities appear generally to comply with these requirements. Importantly, each state’s enforcement rules and policies provide for graduated enforcement with minor violations subject to warnings or very small civil penalties. Only very significant violations, such as performing renovation work without certification or required permits, will trigger maximum penalties.

When the RRP rule was first proposed, the renovation industry flagged the cost of compliance and the concern that persons performing renovations on the margins would engage in non-compliance as a matter of course as major concerns. On February 1st, 2012, Professional Remodeler Magazine released information collected from a December 2011 survey asking remodelers how the RRP Rule had impacted their businesses. 64 percent reported they had lost business as a result of the rule. Significantly, 46 percent of respondents said less than 10 percent of remodelers in their local market were following the rule and only 8 percent thought more than half of their local competitors were in compliance.

These survey results may not hold for Oregon and Washington, but more agency education and outreach to both the general public and the regulated community appears to be necessary. The vast majority of parents, once properly educated about the risks to their children, will hire certified contractors and pay the modest added costs to perform renovation work properly. Although agency enforcement can be burdensome to the renovation industry, it can and should play an important role in insuring fair competition in addition to protecting human health.