License to Paint

The EPA’s new lead paint regulations require certifications for your staff – and non-compliance can mean heavy penalties.

Warning

Hefty fines could be ahead. A new federal regulation regarding lead paint has just taken effect for every building built before 1978 – with fines for non-compliance reaching as much as $37,500 per incident per day.

Passed in 2008 and effective starting April 22, 2010, the rule requires that any hired professional must have an Environmental Protection Agency (EPA) lead-paint-removal training and certification for any painting, window/door replacement, or anything else that disturbs more than six square feet of paint in an apartment.

What this means for co-ops and condos: changes in the alteration agreement, and sending any building employee who handles a paint brush to an eight-hour class that costs around $300 to $500 for each member. That can be a big headache for some properties.

But the alternative – paying heavy penalties – is worse. The fines are “extremely onerous,” says Don Levy, a vice president at the property management firm Brown Harris Stevens.

The new federal rule, says Peter Lehr, director of management at Kaled Management, “picks up where [New York City] Local Law 1 stopped short on the co-op and condo side.” Local Law 1 of 2004 addresses lead-paint testing and disposal for pre-1960 buildings, and “only addressed the common areas” in co-ops and condos and not the interiors of apartments. The new law corrects that.

Lehr says the single-day, eight-hour certification course gives workers a better sense of lead-paint hazards, identification, and disposal, “and gives everybody living there an added layer of protection.” Lead paint, which has been outlawed since 1978, poses a major, serious health hazard, particularly to children and pregnant women. Lead poisoning is toxic to organs and tissues including the heart, intestines, kidneys, and the reproductive and nervous systems – that last of which can leading to permanent learning and behavioral disorders. Even with lead paint not being sold for the last 32 years, old and peeling lead paint and lead dust (along with lead in very old plumbing) contributed to an estimated 120,000 children under age six testing positive for elevated lead levels nationally in 2006, according to the Centers for Disease Control and Prevention (CDC).

The EPA rule, called the “Lead Renovation, Repair, and Painting Program,” applies solely to housing constructed before 1978, and doesn’t include housing for the elderly or persons with disabilities, unless any child under age six lives there or is expected to. It establishes requirements for training, certifying, and accrediting renovators, renovation firms, and dust-sampling technicians for renovation work practices; and for record-keeping. Contracting firms are required to be certified, and their employees trained in lead-safe work practices that minimize occupants’ exposure.

The procedures essentially come down to three, says the EPA:

• Contain the work area

• Minimize dust

• Clean up thoroughly

“Renovation” in this case can mean acts as simple as scraping paint or even removing carpets if it involves pulling up painted baseboards – but only if a professional contractor or handyman is doing the work. Note that the new rule doesn’t apply to co-op shareholders or condo unit-owners doing their own renovation, repair or painting in their own home. Additionally, pre-renovation education requirements don’t apply to emergency renovations.

However, if your board requires an alteration agreement, as most do, then the building could be held liable, notes Levy of Brown Harris Stevens. “We’re making sure our buildings’ alteration agreements include a revision that anybody doing work in [a pre-1978] apartment must have the [new] certification,” he says. Levy advises that boards “add a rider that will now indicate that before approval will be given to either decorating or alteration that the people who do the work have to submit their license, if it’s a licensed trade, and submit evidence that the people doing this have achieved certification.”

The certification is good for five years, and stays with the individual – so, if your certified super leaves, then the next super (or anyone else in charge of overseeing work that might disturb lead paint) must be certified. A copy of the certificate, which includes a photo of the certified person, must remain on site. On-site individuals are the ones being certified, so your super isn’t covered by your building manager’s renovators license.

As for the fines, which have been the subject of some misinterpretation and misreporting, a spokesperson for the EPA says the $37,500 figure is a maximum amount, one aimed at the largest buildings and most persistent violators. “There’s no schedule of fines,” he says. “It’s based on how egregious the violation is.” How will they learn of violations? “The agency is going to adopt enforcement on a basis of tips and complaints,” the spokesperson says, not through regular inspections. (And to clear up another bit of confusion, the evidently sole public document that mentions the maximum fine gives the wrong figure. “The $32,500 is incorrect. It’s up to $37,500 per incident per day,” the EPA spokesman notes.)

“It’s not complicated,” says Lehr. “Say somebody’s painting a [pre-1978] co-op apartment. The shareholder says, ‘I hired so-and-so to paint it.’ So you ask, ‘ Has so-and-so taken any of these classes and gotten certified? And your super can watch the guy start scraping the apartment down and see if he’s tented the area and taken the proper precautions. If he has linen drop cloths instead of [the required] plastic drop cloths, for instance, the super can say, ‘This is a problem,’ because he’s had training.”

Essentially, says Levy, “The super has the same responsibility to oversee the work as in any other situation.” Only now, he’ll be doing it with a little more education and awareness – never a bad thing.

Who Must Be Certified?

The EPA’s “Small Entity Compliance Guide to Renovate Right: EPA’s Lead-Based Paint Renovation, Repair and Painting Program” handbook states that firms doing renovation – “broadly defined as any activity that disturbs painted surfaces and includes most repair, remodeling, and maintenance activities, including window replacement” – in buildings that fall under the rule are required to be certified, and their employees trained, in the use of lead-safe work practices.

In practice, training equals certification: employees who complete the accredited, eight-hour-minimum training course receive a certification of completion.

A full copy of the new rule is on the EPA website at:

http://www.epa.gov/lead/pubs/renovation.htm