It is two weeks until the Environmental Protection Agency’s lead paint law takes effect on April 22, which means it’s high time not only to review the work practices and certifications that lately have received so much attention – but also your contracts.
“The stakes are very, very high” for remodelers, says construction and real estate lawyer Andrea Goldman of the EPA’s Lead: Renovation, Repair, and Painting (RRP) rule. For starters, the EPA can assess heavy fines against contractors (up to $37,500 per violation per day) for not complying with the rule, which will affect work on homes built before 1978. Many remodelers have been scrambling to get the firm and employee certifications that the rule requires, despite a widely reported shortage of training providers in many parts of the country.
Then there are the legal stakes. “You cannot shield yourself from liability,” says Goldman, of The Law Office of Andrea Goldman, in Newton, Mass. Lawsuits emerging from the rule could make it fairly easy for homeowners to point fingers at their general contractor if a child or other occupant of the home tests positive for lead poisoning, regardless of when or how that person was exposed.
Goldman suggests a number of proactive steps with regard to your contracts, adding that it’s always safest to consult a lawyer for direct legal advice.
Before you begin any work in a home built before 1978, Goldman says, give clients a copy of the pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools (available from EPA by clicking here). Be sure that clients understand the rule, and provide them with proof of your firm and employee certifications (the EPA will provide you with the green logo shown here, as well as certification numbers).
Then, prepare and have clients sign an agreement specific to the RRP covering points such as:
They received the pamphlet before the work began.
Their home has/has not been tested for lead paint. (If the house has been tested, and no lead paint has been found, they acknowledge that you are not required to use lead-safe practices.)
They understand the lead-safe practices that will be followed.
They acknowledge that high winds or other variables could delay work.
Goldman (see her contact information at the end of this article) has produced a contract for her clients that covers these items and more. You can also download a sample pre-renovation disclosure form here from the EPA.
“The main thing is for contractors to provide homeowners with the pamphlet and to get them to put in writing that they understand the facts,” Goldman says. Between a signed contract and the contractor’s good-faith effort to educate and work safely, “it’s hard, psychologically, for homeowners to file a claim against you,” she believes.
The RRP rule applies to any trade performing work that disturbs the minimum area of lead-painted surfaces. This means that not only must your company and at least one of your on-site employees be RRP certified for work in pre-1978 homes, but so must your electricians, plumbers, HVAC contractors, and other trades.
Unless, of course, you want to allocate the time and resources of your own RRP-certified staff to train subs in lead-safe measures, oversee their cleanup, and more. In that case, Goldman says, “You’re taking on a lot of liability and supervisory responsibility that you might not want to have.”
Besides requiring your trade contractors to have proof of EPA firm and renovator certifications, Goldman advises that your contracts with them:
Include an indemnification clause making the subcontractor liable for his part of the work that requires lead-containment procedures.
Clearly spell out the subcontractors’ scope of work, including lead-containment procedures.
Make final payment contingent upon the subcontractors’ completion of all documentation required by the EPA.
Please contact Goldman directly if you would like to discuss her legal services: firstname.lastname@example.org or 617.467.3072.