A legal settlement entered into at the end of August with the Environmental Protection Agency (EPA) is almost assuredly going to increase the burdens placed on contractors in dealing with lead paint beginning next April.

Last year a handful of public interest groups sued the EPA alleging that the March 31, 2008, amendment to the Toxic Substances Control Act (TSCA), which made radical changes to the way contractors were to deal with lead paint on jobsites, did not go far enough. These groups argued that additional safeguards were needed to protect the public. Among other items, the plaintiffs alleged that:

  • Homeowners should not be able to sign a waiver allowing a contractor to proceed on a job without using lead-safe work practices (LSWP), as the law currently allows; contractors should have to certify to homeowners exactly how LSWP were carried out in the home;
  • More stringent testing needs to be done by a contractor when a job is completed using LSWP, to assure homeowners that no lead dust remains on the jobsite; and
  • The EPA should address renovations on commercial properties that could affect nearby residential areas.

While such changes to TSCA would have an impact on the work practices of thousands of contractors, it appears that no thought was given to the potential effect or the resulting increase in costs to homeowners wishing to undertake remodeling on pre-1978 homes. Of course, the EPA sees this a bit differently. Having previously estimated the cost of performing LSWP on a typical remodeling job to average a mere $35, the EPA has stated that it “does not expect the incremental costs associated with this rule to be a determinative factor for consumers.” Apparently the EPA also felt that a fight with the plaintiffs in this case was not worth the effort, as President Obama’s EPA Administrator Lisa Jackson authorized her staff to “fix” the TSCA lead-paint rule, resulting in the settlement agreement, which also finds the EPA paying the legal fees incurred by the plaintiffs.

By law, the EPA cannot simply agree to make changes to U.S. law. Instead, it must propose such changes, solicit comment on the changes, then issue a final decision on the changes. As such, the EPA has agreed to publish the first set of proposed amendments to TSCA by Oct. 20, 2009, which will call for the elimination of the homeowner opt-out and will require that contractors provide some type of post-job completion testing and certification to homeowners after LSWP are completed. Barring any unforeseen group opposition to such changes, the EPA will amend the law by April 22, 2010, to reflect these modifications. Additional proposed amendments are now expected by midsummer 2011.

—D.S. Berenson is the Washington, D.C., managing partner of Johanson Berenson LLP (www.homeimprovementlaw.com), a national law firm specializing in the representation of contractors and the home improvement industry. He may be contacted at 703.759.1055 or [email protected].

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