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For Immediate Release

Contact:
Nina McCann
Director of Public Relations
Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP
516-248-1700
nmccann@ForchelliLaw.com

Partner Peter Alpert Summarizes The EPA Lead-Based Paint Renovation, Repair and Painting Program

The EPA Lead-Based Paint Renovation, Repair and Painting Program is a federal regulatory program affecting contractors, property managers, and others who disturb painted surfaces.  It applies to residential houses, apartments, and child-occupied facilities such as schools and day-care centers built before 1978.  It includes pre-renovation education requirements as well as training, certification, and work practice requirements.  Contractors who perform renovations for compensation in residential houses, apartments, and child-occupied facilities built before 1978 are required to distribute a lead disclosure pamphlet before starting renovation work, (7 days in advance if by mail documented with a certificate of mailing, the day before if in-hand delivery).

Effective April 22, 2010 firms are required to be certified, their employees must be trained in use of lead-safe work practices, and lead-safe work practices that minimize occupants’ exposure to lead hazards must be followed.  Renovation is broadly defined as any activity that disturbs painted surfaces and includes most repair, remodeling, and maintenance activities, including window replacement, Electrical work, Plumbing, Painting, and Carpentry

The following housing is excluded:  Housing built in 1978 or later; Housing for elderly or disabled persons, unless children under 6 reside or are expected to reside there; Zero-bedroom dwellings (studio apartments, dormitories, etc.); Housing or components declared lead-free by a certified inspector or risk assessor.  In addition, minor repair and maintenance activities that disturb 6 square feet or less of paint per room inside, or 20 square feet or less on the exterior of a home or building; (Note: minor repair and maintenance activities do not include window replacement and projects involving demolition or prohibited practices).

Pre-renovation education requirements:

• Contractors must distribute EPA’s lead pamphlet to the owner and occupants before renovation starts; Obtain confirmation of receipt of the lead pamphlet from the owner, adult representative, or occupants (as applicable), or a certificate of mailing from the post office; Retain records for three years.

(Note: Pre-renovation education requirements do not apply to emergency renovations.)

Training, Certification, and Work Practice Requirements-Effective after April 22, 2010.

• Firms must be certified.

• Renovators must be trained.

• Lead-safe work practices must be followed.

Exceptions and Exclusions

• The training, certification, and work practice requirements do not apply where the firm obtained a signed statement from the owner that all of the following are met:

  • The renovation will occur in the owner’s residence;

  • No child under age 6 resides there;

  • No woman who is pregnant resides there;

  • The housing is not a child-occupied facility; and

  • The owner acknowledges that the renovation firm will not be required to use the work practices contained in the rule.

Firms may apply to EPA for certification to perform renovations or dust sampling.  To apply, a firm must submit to EPA a completed “Application for Firms,” signed by an authorized agent of the firm and pay the correct amount of fees. 

Firms performing renovations must ensure that:

1. All individuals performing activities that disturb painted surfaces on behalf of the firm are either certified renovators or have been trained by a certified renovator.

2. A certified renovator is assigned to each renovation and performs all of the certified renovator responsibilities.

3. All renovations performed by the firm are performed in accordance with the work practice standards of the Lead-Based Paint Renovation, Repair, and Painting Program.

4. Pre-renovation education requirements of the Lead-Based Renovation, Repair, and Painting Program are performed.

5. The program’s recordkeeping requirements are met.

Certified Renovators are responsible for ensuring overall compliance with the Lead-Based Paint Renovation, Repair, and Painting Program’s requirements for lead-safe work practices at renovations they are assigned.  A certified renovator:

1. Must use a test kit acceptable to EPA, when requested by the party contracting for renovation services, to determine whether components to be affected by the renovation contain lead-based paint.

2. Must provide on-the-job training to workers on the work practices they will be using in performing their assigned tasks.

3. Must be physically present at the work site when warning signs are posted, while the work-area containment is being established, and while the work-area cleaning is performed.

4. Must regularly direct work being performed by other individuals to ensure that the work practices are being followed, including maintaining the integrity of the containment barriers and ensuring that dust or debris does not spread beyond the work area.

5. Must be available, either on-site or by telephone, at all times renovations are being conducted.

6. Must perform project cleaning verification.

7. Must have with them at the work site copies of their initial course completion certificate and their most recent refresher course completion certificate.

8. Must prepare required records.

• All documents must be retained for three years following the completion of a renovation.

• Records that must be retained include:

  • Reports certifying that lead-based paint is not present.

  • Records relating to the distribution of the lead pamphlet.

  • Any signed and dated statements received from owner-occupants documenting that the requirements do not apply (i.e., there is no child under age 6 or no pregnant woman who resides at the home, and it is not a child-occupied facility).

  • Documentation of compliance with the requirements of the Lead-Based Paint Renovation, Repair, and Painting Program.

Pursuant to a contract dated December 9, 2009 Imperial Commercial Residential Resources Inc. was engaged to perform window replacement at the Estates at Bayside Owners Inc., a multi-building Cooperative in Queens, New York.  A review of the Building Department records with respect to the date of construction of the building was inconclusive.  A Certificate of Occupancy from 1987 with respect to certain alterations was found, but there was no evidence as to when the building was actually constructed.  Further, a review of the land records indicates that the Coop Corporation took title to the premises in 1985.  If the premises were constructed after 1978 then these regulations are inapplicable.  It is however more than likely that the premises were constructed prior to that date, notwithstanding the absence of building records so indicating. 

Assuming the building was constructed prior to 1978, although the regulations do not specifically indicate that they are applicable to condominiums and cooperatives, a fair reading of the language leads us to conclude that the cooperative buildings are included.  Renovation specifically includes window replacement work. 

Based upon the foregoing it appears that the buildings in question are covered by the regulations and that the regulations must be complied with.  Accordingly the EPA educational pamphlet should have been distributed prior to the commencement of work.  In addition, commencing April 22, 2010 all renovation work must be done in accordance with the regulations by trained and certified personnel in compliance with the EPA work practice requirements.

There is no exception in the regulations for contracts which  pre-exist the effective date of the regulation.  Pursuant to the regulations there are two exclusions which might lessen the burden of compliance.  The first is the inapplicability of the regulations to residences which are not occupied by children under 6 or pregnant women and that the premises are not child-occupied facilities.  Conceivably this could be done on an apartment-by-apartment basis so that the only apartments that need compliance are those for which no such waiver could be obtained.  In addition with respect to all apartments for which waivers cannot be obtained, it would be necessary to perform testing for the presence of lead paint (it should be noted that the area around each window that would be removed must be separately tested).  If lead paint is not found then the procedures need not be complied with.

The contract between Imperial and the Cooperative Corporation – Section 8.6.2 specifically provides that the contractor shall comply with and give all notices required by law.  Section 15.2 deals with hazardous materials.  Section 15.2.1 provides, “if reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material substance…, encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop work in the affected area and report the condition to the owner and architect in writing.  When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the owner and Contractor.  The contract time shall be extended appropriately and the contract sum shall be increased in the amount of the contract as reasonable additional cost of shut-down, delay and start-up…  At this time if lead paint was found at the premises pursuant to this section, the Contractor could take the position that reasonable precautions are inadequate, notify the owner and architect and stop work until the situation has been remedied (by the Owner, at the Owner’s expense).

Applying the regulations and contract to the present case we recommend the following:

1. It be confirmed whether or not the building was constructed prior to 1978.

2. If the building was constructed prior to 1978 the Contractor can either: (i) meet with the Coop Board, discuss the fact that new procedures must commence 4/22/10, commence the notification and compliance process and get waivers when possible and when waivers cannot be obtained, comply (either at the Contractor’s or Owner’s expense) or (ii) the Contractor can test for the presence of lead paint.  If lead paint is found the Contractor can take the position under its contract that work cannot proceed using reasonable precautions.   The Contractor would then notify the Owner and stop work until the premises has been remediated.  This could then be followed up with a meeting with the Coop Board as set forth in (i).

It is not certain whether Imperial would prevail under this theory.  Section 9.10.4 of the Contract provides that claims under the contract will be arbitrated by the American Arbitration Association. It should be noted that Section 9.11 waives claims for consequential damages (i.e. loss of the J-51 Tax abatement).   Hence if the claim was arbitrated and Imperial lost they should not be held liable for loss of J-51 benefits, but if they lost they could be held liable if the price of a new contractor to complete the work exceeds Imperial’s price.

1. It should be noted that under the predecessor regulations Imperial was required to deliver pamphlets to the occupants.  As this was not complied with, Imperial is in violation of its contract.  As this violation is not technically curable it is suggested that our firm contact the U.S.  EPA and explain the situation.  It is hoped that a settlement could be worked out where the Contractor would notify all Owner occupants who have children or pregnant women present, test their apartments and remediate lead paint to the extent found.  It is possible that the EPA might also impose a fine for this violation.  Further obviously if lead paint was found and a child or pregnant woman was impacted, the Contractor would most likely be sued by the injured party.  It is not clear whether the Contractor’s insurance would cover this law suit.

2. Regrettably there are criminal sanctions available to the EPA for violating these regulations, so care must be taken in the ultimate approach decided upon.

3. It should also be noted that the Managing Agent was also responsible for compliance under the regulation and in the event of a problem they would most likely be sued as well.  It is not clear whether the Coop Board of Managers would also be sued.

If anyone has any additional questions on this program contact attorney Peter Alpert.
Peter Mills Alpert practices in the areas of real estate acquisition, leasing, finance, corporate and commercial law, and condominiums and cooperatives.

Founded in 1976, Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn, & Terrana LLP is one of Long Island's most acclaimed and distinguished law firms. Headquartered in Uniondale, NY, the Firm provides counsel to a broad range of clients, including national, regional and local businesses, major real estate developers and organizations, banks, insurance companies, municipalities, educational institutions, and individuals.

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