What the Environmental Protection Agency issued on June 18, 2010, was an internal “guidance” memorandum stating that contractors now have until Oct. 1 to register as a renovation firm with the EPA, and individuals now have until Sept. 30 to sign up for certified renovator training, which must be completed by Dec. 31.

This memorandum only addresses the EPA’s intentions in assessing fines for these licensing issues. The EPA will still expect and will still enforce the requirements to test for lead paint and to perform lead-safe work practices, but it seems you don’t need to be licensed as a renovation firm or use a certified renovator in doing the lead-safe work practices — for the time being.

Potential Liability

How can a contractor not trained in lead-safe work practices properly perform and certify that he has actually conducted lead-safe practices? The potential liability from this is nightmarish.

If, instead, what the EPA meant was that unlicensed contractors do not need to comply with the law until this fall, then the memorandum [PDF] should have stated that. (It does not.) It’s hard to conceive of a more inherently improper, unfair result than this.

Surely the EPA wouldn’t suggest that it’s acceptable to punish those contractors who spent time and money coming into full compliance with the law by the April 22 deadline by forcing them to conduct lead-safe work practices (and price their work accordingly), while unlicensed contractors don’t have to?

Of course, at the state level, this delay in fines is not applicable to those states that have implemented their own form of the RRP — Iowa, Kansas, Mississippi, North Carolina, Oregon, Rhode Island, Utah, and Wisconsin.

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 as required.

We strongly suggest that any contractor not yet properly licensed or who fails to use installers licensed as certified renovators remedy that as soon as possible.

—D.S. Berenson is the Washington, D.C., managing partner of Johanson Berenson LLP (homeimprovementlaw.com). Contact him at 703.759.1055 or info@johansonberenson.com.

This article is for informational purposes only and should not be construed as legal advice.