The EPA and the snake pit of litigation

Dear contractor, tradesman, maintenance worker and property owner: The lobbyists, in conjunction with the government, have thrown you into the snake pit of litigation! If you value your business, and want to see profits in the future versus litigation, this could be the most important article you will every read. As a nationally respected lead-based paint expert and having performed thousands of lead assessments and abatement projects, I am sharing that the federal government's failure to require the trades to collect dust wipe clearance samples upon completing a paint disturbance under EPA's Lead Renovation, Remodeling and Repair Rule (RRP) (April 2010) is throwing you into the snake pit of litigation and trial lawyers. Why? On July 15, the United States Environmental Protection Agency (EPA) published their final amendments to EPA's RRP Rule. EPA clearly stated that lead dust wipe clearance sampling collection was not required and contractors are not responsible to perform the very subjective and very misleading cleaning verification test in rooms where work was not required, contracted for or performed in. Sounds like a great situation, right? - WRONG! Wrong, because there has been a long well established, well litigated, federally regulated dust lead standard under the Toxic Substance Control Act (TSCA) that states 40 micrograms of lead dust per s/f is considered a toxic level. You might be asking, So what? Well the "so what" is that it is a well known fact that dust levels of 40 µg/sqft can EASILY be tracked into a property from general day to day life, walking, working... Additionally, it is very difficult, if not impossible, to see 40 micrograms of lead dust particulate with the naked eye since its size is so small. Imagine you are hired by a client to demo and redo a single bathroom in a pre-1978 property. As a professional who takes great pride in their work and professionalism, you are properly certified by the EPA as a certified lead renovator and, you yourself, are an EPA certified lead supervisor. You have properly completed all of the regulated paperwork and upon completion of the bathroom renovation and cleanup you perform the RRP rule required cleaning verification. Based on your visual inspection, it passes. You then thank the client for allowing you this opportunity. They tell you they love it and you request final payment. Then when you least expect it, that satisfied client questions whether or not any hazardous levels of lead dust could still be present in their property. So they collect lead dust wipe samples and have them analyzed by an accredited lab who determines that several of the samples have identified toxic levels of lead. Regulated levels of toxic lead dust remain within the property and NOT necessarily in the bathroom, the only room you were required to clean and perform visual verification within, in accordance with the final rule. As I am sure you can imagine this story continues and plays out with lawyers, legal bills, expert testimony and lots of wasted time and gray hairs! The problem arises when you did not prove prior to performing the work that these pre-existing levels of toxic lead dust existed. Once you have performed any paint disturbances within the property without having baseline dust lead levels in the areas you are NOT working in, you just accepted ownership and unfortunately full responsibility for these other rooms toxic lead dust levels after the fact! Be aware most trade oriented insurance policies contain lead-based paint exclusions. Consequently, NO coverage for the claim when one arises. The best offense is a good defense. Laboratory analyzed clearance lead dust wipes are the cheapest insurance around! To best protect yourself take lead dust wipes prior to beginning the project and should any exceed the hazardous level you can address such concerns prior to beginning the project and prior to any litigation proceedings. They might even consider hiring you to properly clean these areas in addition to the bathroom renovation. Lee Wasserman is a nationally recognized industry expert and founder of LEW Corp., Mountainside, N.J.