By Sarah Louppe Petcher, NVAR General Counsel

On April 22, 2010, a new rule that affects our industry in varying degrees will come into play. It will impact property managers the most, but all agents involved in selling or leasing real estate must understand this new rule. This column is meant as an alert to our membership and to ensure compliance, but all NVAR members should read the complete rule on which the program is based. In addition, the EPA has summarized the provisions of the rule in a guide. Both the rule and the guide are available on the EPA’s Web site at www.epa.gov/lead.

What is this new rule?
The full name of the program created by this rule is the “Lead-Based Paint Renovation, Repair and Painting Program.” As the name indicates, it is intended to make home renovation safer by ensuring that lead-based paint is contained and cleaned up so as to minimize exposure. Renovation is broadly defined as any activity that disturbs painted surfaces and includes most repair, remodeling, and maintenance activities, including window replacement.

To whom does the rule apply?
Anyone performing renovation work for compensation that disturbs more than 6 square feet of paint inside or 20 square feet of paint outside, or undertaking any demolition or window replacement in residential housing or child-occupied facilities built before 1978 needs to comply with this rule. These mandates generally apply to residential rental property owners/managers, general contractors and special trade contractors, including painters, plumbers, carpenters or electricians, among others. See page 35 for exceptions to the rule.

“For compensation” is interpreted broadly. If property managers undertake renovations themselves, they are deemed to be doing it for compensation. If a tenant does some renovation or painting work in exchange for an abatement of rent, then the renovation work is performed for compensation and thus falls under the rule.

Six square feet of paint may not seem like much but remember, anytime paint is disturbed, the rule applies. However, simply adding another layer of paint without disturbing the existing ones does not require compliance with these new requirements.

Certification process:
It is necessary to obtain a certification prior to undertaking renovation work that would fall within the rule. While the certification application is free, there is a charge for the one-day required course. Currently several local organizations offer the certification course: Training Network, Inc., based in Reston and Alliance for Healthy Homes, based out of Washington D.C. In addition, there are a number of national training firms listed on the EPA’s Web site.

What are the responsibilities of a certified renovator?
The rule provides guidelines to ensure that the renovation releases the least possible amount of lead into the air. Some examples of lead-safe work practices include:
1. Work-area containment to prevent dust and debris from leaving the area.
2. Prohibition of certain work practices like open-flame burning and the use of power tools without HEPA exhaust control.
3. Thorough clean up followed by a verification procedure to minimize exposure to lead-based paint hazards.

Certified renovators are responsible for ensuring overall compliance with the Program’s requirements for lead-safe work. Prior to beginning work, the certified renovator must provide the home owner or the tenant with a copy of the new brochure entitled “Renovate Right” and must also obtain the home owner’s or tenant’s signature acknowledging receipt of the brochure.

In addition, a certified renovator must:
1. Use a test kit acceptable to EPA, when requested by the party contracting for renovation services, to determine whether components to be affected by the renovation contain lead-based paint. EPA will announce which test kits are acceptable prior to April 2010. Check www.epa.gov/lead for the list.
2. Provide on-the-job training to workers on the practices they will be using in performing their tasks.
3. Be physically present at the work site when warning signs are posted, while the work-area containment is established and while the work-area cleaning is performed.
4. Regularly direct work performed by other individuals to ensure that the work practices are followed, including maintaining the integrity of the containment barriers and ensuring that dust or debris does not spread beyond the work area.
5. Be available, either on-site or by telephone, at all times renovations are being conducted.
6. Perform project cleaning verification.
7. Have available at the work site copies of the certificates for the initial course completion and the most recent refresher course completion.
8. Prepare required records.

The major exclusions to the rule:
The new rule will not apply in the following circumstances:
1. The residence or childcare facility was built after 1978.
2. A certified renovator conducts a lead-based paint test in various locations around the house to determine the presence of lead. The areas certified to be lead free can be renovated freely.
3. Less than six square feet of paint inside or 20 square feet of paint outside is disturbed.
4. The work is done by a tenant without compensation

How are Realtors® Affected?
Any Realtor® involved in a real estate transaction for a home built prior to 1978 must understand the rule. Why? Because it will affect the Lead Based Paint Disclosure form. If there was a renovation performed with testing that revealed lead paint, the home owner must now disclose the presence of lead-based paint in the home. Any Realtor® who will represent a buyer with a house that has been renovated some time after April 22, 2010 should ask questions about lead-based paint. Please note that the law still requires that an agent ensure the accurate completion and disclosure on the sales contract of the existence of lead-based paint in a home built prior to 1978, even if no renovation has occurred.

In addition, Realtors® with clients considering renovations should make sure that the contractor is properly certified. It is important to ask for a copy of the certification and make sure it is current. HUD is developing a list of contractors who have obtained the certification, which will be available on its Web site.

What are the penalties?
The penalties are stringent. The fines can be up to $37,500 per day per occurrence. Anyone can file complaints against an alleged violator. It is not limited to a home owner or landlord.

This article provides only a summary of the main provisions of this new rule. NVAR encourages its members to read the information provided by the EPA on its Web site for a more comprehensive overview of the matter.
This article quotes sections of a guide entitled “Small Entity Compliance Guide” published by the EPA which can be found at www.EPA.gov/lead.