Oh Shiplap! “Fixer Upper” Stars Violate Lead-Based Paint Rules

In 2008, the U.S. Environmental Protection Agency (“USEPA”) adopted the Lead-Based Paint Renovation, Repair and Painting (“RRP”) Rule under its TSCA authority. See 40 CFR §745.80 et seq. Congress’ purpose for implementing this rule was to protect occupants in homes and buildings built before 1978 from lead-based paint hazards during renovation. The RRP Rule requires anyone receiving compensation to perform work that disturbs paint in houses, apartments and child-occupied facilities built before 1978 to prevent or minimize exposure to lead hazards. The RRP Rule establishes requirements for training, certification, work practices, and pre-renovation notification. In addition to contractors and painters, the RRP Rule can apply to residential rental property owners and managers, plumbers, carpenters and electricians. Certain exclusions within the RRP Rule may cover “minor repair and maintenance” and “zero-bedroom dwellings.” USEPA has published the Small Entity Compliance Guide to Renovate Right: EPA’s Lead-Based Paint Renovation, Repair and Painting Program: September 2011, which provides helpful information regarding compliance with the RRP Rule. See https://www.epa.gov/lead/small-entity-compliance-guide-renovate-right-epas-lead-based-paint-renovation-repair-and.

On April 27, 2018, Chip and Joanna Gaines of HGTV’s Fixer Upper television program agreed to a Consent Agreement and Final Order for violations of the RRP Rule. In the Matter of Magnolia Waco Properties, LLC d/b/a Magnolia Homes, No. TSCA-HQ-2018-5004 (USEPA April 27, 2018), available at https://www.epa.gov/sites/production/files/2018-06/documents/magnoliawacopropertiesllcconsentagreementandfinalorder.pdf. Fixer Upper shows renovation projects involve deteriorating homes in Waco, Texas. Many of the properties renovated by the Gaines’ business, Magnolia Homes, were subject to the RRP Rule. USEPA alleged violations of the RRP Rule when Magnolia Homes failed to:

  1. Obtain firm certification from USEPA before performing renovations covered by the RRP Rule;
  2. Assign a certified renovator to such renovations;
  3. Provide homeowners or occupants with an approved pamphlet about lead-based paint hazards prior to the renovation;
  4. Post signs to clearly define the work area and warn people to remain outside that area; and
  5. Comply with the RRP Rule’s work practice standards, such as closing doors and windows to the interior work areas, covering floor surfaces, ducts and other openings to work areas with plastic sheeting, and covering the ground with plastic sheeting to capture falling paint chips from exterior renovations.

Magnolia Waco Properties, LLC Residential Property Renovation Rule Settlement Information Sheet, USEPA, is available at https://www.epa.gov/enforcement/magnolia-waco-properties-llc-residential-property-renovation-rule-settlement-information (last visited August 2, 2018).

The negotiated sanctions for Magnolia Homes’ noncompliance included injunctive relief and a civil penalty. The injunctive relief imposed focused on compliance management of Magnolia Homes’ renovation operations, outreach about lead-based paint safety to its national audience, and the reduction of lead-based paint hazards in Magnolia Homes’ local community. See id. A supplemental environmental project with a $160,000 commitment to reduce lead-based paint hazards in Waco, Texas, was also part of the settlement. Magnolia Homes was also required to pay a separate civil penalty of $40,000.

Companies involved with renovation projects at older homes, apartments, and child-occupied facilities need to be aware of the RRP Rule and its certification, training, recordkeeping, and work practice requirements. USEPA enforcement of the RRP Rule has increased from 16 enforcement actions in 2012 to over 100 enforcement actions in 2016. Firms involved with renovation at older homes and buildings should ensure they are meeting RRP Rule requirements before embarking on liability-inducing projects of their own. If you are not sure whether you or your company are subject to the RRP Rule, please contact the environmental attorneys at HeplerBroom, LLC and we can assist you.

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Kerri Forsythe

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