September 29, 2011

Contractors who are renovating, remodeling or repairing pre-1978 residential housing should consider taking steps to maintain compliance with a wide-ranging federal environmental law that requires disclosure of lead based paint hazards to owners and occupants of so-called target housing.  Contractors who fail to comply may face penalties.

A recent settlement of a complaint filed by the U.S. Environmental Protection Agency (“EPA”) and the State of Michigan, United States of America and the State of Michigan v. Hanson’s Window and Construction, Inc., illustrates the importance of compliance and the potential for exposure to civil penalties for firms that fail to comply.  The EPA and the State of Michigan alleged that Hanson’s Window and Construction, Inc. (“Hanson’s”) failed to distribute an EPA-approved pamphlet prior to undertaking renovations in homes that had been constructed before 1978.

EPA alleged that Hanson’s violated provisions of the Toxic Substances Control Act (“TSCA”) and a related federal regulation known as the Residential Property Renovation Rule.  The alleged violations related to Hanson’s failure to comply with federal and state requirements for hazard notification and education.  Hanson’s faced allegations that it had also violated the State of Michigan’s Abatement Act and rules promulgated under that law that regulate exposure to lead paint.

According to a press release from the EPA, Hanson’s reached a settlement with the EPA and Michigan resolving the disputed issues and averting a hearing before an EPA administrative law judge.  EPA’s press release indicates that Hanson’s agreed to pay an administrative penalty of $50,000 to resolve the case.  As part of the settlement and to defray a portion of a larger undisclosed proposed penalty, Hanson’s also agreed to perform a Supplemental Environmental Project (“SEP”).  For its SEP, Hanson’s agreed to provide windows with a retail value of $250,000 to the State of Michigan for installation in older-occupied target housing.  Finally, Hanson’s agreed to develop and implement procedures to insure its future compliance with the Residential Property Renovation Rule.

The Hanson’s case was filed by EPA’s Region 5 office in Chicago, Illinois.  EPA’s Region 5 office covers the states of Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin and 35 tribes with land in those areas.  EPA routinely conducts unannounced and complaint inspections of contractor’s offices and job sites.

Under the federal rule, painters, contractors, carpenters, property-management companies and others involved in remodeling or renovation of pre-1978 housing are required to provide home owners and occupants with an EPA Renovate Right lead hazard information pamphlet.  A copy of the pamphlet can be found at: http://www.epa.gov/lead/pubs/renovaterightbrochure.pdf.

The EPA pamphlet educates home owners or occupants on how to minimize exposure to hazardous lead dust that is often generated during sanding, cutting, demolition or other renovation activities.  The pamphlet also provides resources for more information about lead and minimizing lead hazards.

In 1978 lead was banned from paint used for housing.  According to EPA, lead-based paint can be on walls, ceilings, woodwork, windows, or even floors of older homes.  When lead-based paint on these surfaces is chipped, sanded, or scraped, it breaks into tiny, barely visible pieces that children can swallow or inhale.  EPA maintains that even small repair and renovation jobs, including repainting projects, can create enough lead dust and chips to harm children.

EPA states that lead poisoning is a silent disease that can cause serious health consequences for children because of its detrimental effects on both physical and mental development.  The EPA states that nearly one million children in the country are affected by elevated lead levels.

EPA investigates renovation work conducted on homes constructed prior to 1978 that may contain surfaces that were painted with lead based paint.  EPA has the authority to review records of contractors, property managers and landlords and to conduct independent investigations to determine the status of compliance with federal law.

For copies of the federal rule or information on the hazards of lead paint, call 1-800-424-LEAD or via the Internet at:  www.epa.gov/lead.

Under a similar EPA program, landlords and property managers must disclose potential lead based paint hazards to tenants who reside in target housing.  A separate EPA pamphlet must be provided to tenants.  Information about this pamphlet can be found at:http://www.epa.gov/lead/pubs/leadprot.htm.

At Hessian & McKasy’s environmental law attorney practice group we represent contractors, landlords and other persons who are subject to federal and state regulation, including the regulations related to lead based paint and the Residential Property Renovation Rule.  We work with clients across the Upper Midwest and Minnesota, Wisconsin, North Dakota, South Dakota, Iowa and Nebraska, as well as clients across the country to address compliance with federal and state environmental standards.  We have extensive experience dealing with EPA administrative and civil enforcement actions.  We counsel clients on compliance measures including the development of environmental audit protocols to help ensure compliance going forward.

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