Based on construction lawyer D.S. Berenson’s hundreds of discussions with home improvement contractors concerned about lead-paint laws, these five questions are most common:
Do I need to start testing for lead paint on April 22, 2010?
No. You probably need to start testing for lead paint much sooner. The lead paint guillotine falls on April 22, 2010, which means that any jobs you have in progress (sold, pending installation, installation in process, etc.) are automatically subject to the new laws on that date.
Does my company need to be registered with the Environmental Protection Agency as a renovation firm?
Yes. And do it now — the EPA can run up to a 90-day delay on approvals — if you are going to perform remodeling or home improvement work on houses built before 1978. The application is easy to fill out; the fee is $300, and registration is good for five years before it needs to be renewed. For a copy of the application, click here.
Should my installer be registered with the EPA as a renovation firm?
Yes, if your installers are being treated as independent contractors. We suggest that anyone performing remodeling on houses built before 1978 (assuming they end up working on lead-paint surfaces) should be registered as a “renovation firm.” The law does not distinguish if the person or entity performing the remodeling work has been hired by the consumer or by a general contractor.
Can I tell before I visit the house if there is lead paint?
Yes, to a certain degree. If you can determine that the house was built after 1977, then you know that there is no lead paint to be concerned about. You may want to review HouseAgeCheck.com, a national database of public and private “year-built” information. A contractor can submit addresses to HouseAgeCheck.com in an electronic format and the addresses are then researched and coded by color to indicate if the home is pre-1978. Turn-around time is usually a few hours, and the submitted information is strictly confidential. [Johanson Berenson LLP is affiliated with the industry trade association that operates this website.]
You may also want to check county records — land records, tax assessments — online. Often, this information will show the year that a house was built. However, some jurisdictions do not provide this information or certain counties may be missing from the state’s public database. Moreover, the records available are often difficult to read and are only from the past 20 years, when states first began scanning and computerizing land records.
Make sure to keep proof of the year-built information — relying on what the customer may have told your sales representative is not sufficient evidence to defend a future EPA audit or lawsuit.
Will siding work trigger the lead paint laws?
No, not always. Traditional, so-called “layover siding,” where siding is applied over an existing wall or painted surface through the use of fastening devices (nails, screws, etc.) is not going to be considered to be a renovation under the lead paint laws and in itself is not going to trigger the need for lead-safe work practices. However, if the subsurface or wall is being modified or removed prior to the siding being applied, or the work is disturbing soffit or fascia, then you do need to treat the job as subject to the lead paint laws.
—D.S. Berenson is the Washington, D.C., managing partner of Johanson Berenson LLP (www.homeimprovementlaw.com), a national law firm specializing in the representation of contractors and the home improvement industry. He may be contacted at 703.759.1055 or firstname.lastname@example.org.
This article is for informational purposes only and should not be construed as legal advice.
This is a longer version of an article that appeared in the February 2010 issue of REMODELING.