EPA Exercises Its Authority in Setting Potential Fines against New Hampshire Window Company

3/29/2013

Are you a contractor renovating residences or commercial buildings? Or a property manager thinking about hiring someone to spruce up your building? If so, you must carefully consider many more details than just paint color and window selection. Renovations performed on certain housing and buildings built prior to 1978 must be in compliance with federal lead paint regulations. The cost of not assessing the applicability of these regulations can be severe, particularly for small companies.

On February 25, 2013, the U.S. Environmental Protection Agency ("EPA") assessed potential fines of up to $90,750 in its complaint and notice of opportunity for hearing against a company for failing to follow federal lead-based paint regulations while replacing windows in a Kittery, Maine building which housed child care programs. In August 2011, New Hampshire Plate Glass Corp. contracted with a general contractor to renovate windows as part of the Frisbee School Revitalization Project. Two connected buildings comprised the school: an original building constructed in 1941 and an annex constructed in 1951. At the time of the renovation, two different child care programs operated in the annex building, thus subjecting New Hampshire Plate Glass to the requirements of the EPA's Renovation, Repair and Painting Rule ("RRP Rule").

In April 2011, an environmental consulting company reported that the surfaces on the windows at the school contained lead-based paint, a report which the general contractor stated it provided to New Hampshire Plate Glass. The company insisted that the general contractor informed it that the building was free of lead paint. In February 2012, after an anonymous tip, the EPA inspected the building to evaluate New Hampshire Plate Glass's compliance with the RRP Rule. According to the complaint filed by the EPA, New Hampshire Plate Glass failed to assign certified renovators to this project and failed to maintain safe work practices because it did not cover the ground with a plastic sheet to collect falling paint debris and did not prevent the releases of dust and debris during the project.

In 2008, the EPA promulgated the RRP Rule [40 C.F.R. Part 745, Subparts E and L] under its authority vested in the Residential Lead-Based Paint Hazard Reduction Act of 1992 [42 U.S.C. § 4851]. The Act aimed to reduce childhood exposure to lead paint which can cause physical and developmental impairments. The RRP Rule applies to all renovations performed for compensation in "target housing" and "child-occupied facilities." The regulations define "target housing" as any housing constructed prior to 1978, except housing for the elderly or disabled (unless a child under six resides or is expected to reside in the housing) or any 0-bedroom dwelling. "Child-occupied facility" is defined as a building or portion of a building, constructed prior to 1978, regularly visited by the same child, under six years old, on at least two different days within any week if each day's visit lasts at least three hours (with combined weekly visits lasting at least six hours and combined annual visits lasting at least 60 hours). Thus, daycare centers, preschools, and kindergarten classrooms may all qualify. The regulations authorize civil penalties of up to $37,500/day per violation of the RRP Rule.

The RRP Rule focuses on ensuring three target goals: 1) certifications of firms performing renovation; 2) training of employees working for these firms; and 3) maintenance of a lead-safe work environment. The requirements for a lead-safe work environment focus on: setting up the jobsite safely; minimizing dust; and cleaning up carefully. The regulations spell out six major lead-safe requirements that must be followed. The EPA has published a handbook to assist contractors, property managers, and maintenance personnel working in qualifying facilities with navigating the regulations (http://www.epa.gov/lead/pubs/sbcomplianceguide.pdf).

This scenario emphasizes that people performing or managing renovations to buildings built prior to 1978 must be very careful in assessing whether they qualify as "target housing" or "child-occupied facilities." In this situation, the renovations occurred in a separate physical part of the facility than the child care programs in the annex. Nevertheless, the facts still brought the work within the gamut of the RRP Rule. The EPA will also increase penalties against RRP-certified firms who do not follow the regulations, as it did with New Hampshire Plate Glass when the EPA increased its fine by 10% because it was certified and should have known the requirements. Thus, one must be extremely careful in deciding that renovations do not fall under the RRP Rule in order to avoid harsh penalties in non-compliance with the law.

Governo Law Firm carefully monitors the latest developments in environmental toxic tort law. Please contact Melissa Tarab (mtarab@governo.com) or David Governo (dgoverno@governo.com) if you would like more information on this topic and how it may impact your company.

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