In the last few days before the RRP regulation goes into effect, we decided to try to clear up some misinformation being propagated about the RRP. In yesterday’s article we covered some of the issues dealing with Certified Firms, and in today’s we are going to try to clear up some issues that relate to Certified Lead Renovators (CLR’s).

While there are a quite a few common misconceptions about CLR’s, the following seem to pop up frequently; every firm must employ a CLR, everyone working on a pre-78 house must be a CLR, and finally that the CLR must always be on site. While we are looking at this, another one that pops up from time to time which involves the IRS and their subcontractor or employee test. Before we get started on these, let’s take a quick look at the regulation itself and see if we can clear some of these misconceptions up.

§ 745.81 (3) Individuals. On or after April 22, 2010, all renovations must be directed by renovators certified in accordance with §745.90(a) and performed by certified renovators or individuals trained in accordance with §745.90(b)(2) in target housing or child-occupied facilities, unless the renovation qualifies for one of the exceptions identified in §745.82(a) or (c).

§ 745.90 (b) Renovator responsibilities. Certified renovators are responsible for ensuring compliance with §745.85 at all renovations to which they are assigned. A certified renovator:

(1) Must perform all of the tasks described in §745.85(b) and must either perform or direct workers who perform all of the tasks described in §745.85(a).

(2) Must provide training to workers on the work practices they will be using in performing their assigned tasks.

(3) Must be physically present at the work site when the signs required by §745.85(a)(1) are posted, while the work area containment required by §745.85(a)(2) is being established, and while the work area cleaning required by §745.85(a)(5) is performed.

(4) Must regularly direct work being performed by other individuals to ensure that the work practices are being followed, including maintaining the integrity of the containment barriers and ensuring that dust or debris does not spread beyond the work area.

(5) Must be available, either on-site or by telephone, at all times that renovations are being conducted.

(6) When requested by the party contracting for renovation services, must use an acceptable test kit to determine whether components to be affected by the renovation contain lead-based paint.

(7) Must have with them at the work site copies of their initial course completion certificate and their most recent refresher course completion certificate.

(8) Must prepare the records required by §745.86(b)(7).

 A CLR is required to be employed by every Certified Firm

While they like using the word renovators, one of the key phrases is when they start to describe the responsibilities of a single Certified Renovator. In the paperwork sections, they also describe a single CLR of record being responsible for all aspects of the process. While it may be advantageous for the firms to employ or have trained CLR’s on staff, trying to run a job with multiple CLR’s being in charge, testing, etc… would be a nightmare. Further compounding this issue would be numerous training issues brought out in previous articles. As I have mentioned before the EPA has a FAQ section on their website that occasionally is good for getting a read on their thinking process. I think they have two that should help clarify this issue a little better.

Under the RRP Rule, can a certified renovator supervise workers of a different company, or must each firm involved in a project furnish a certified renovator?

All firms performing renovations must ensure that all individuals performing renovation activities on behalf of the firm are either certified renovators or have been trained by a certified renovator.  The RRP Rule does not prohibit firms from reaching agreement on which will supply the certified renovator who is responsible for ensuring compliance with the RRP Rule and who directs and trains non-certified workers.  All firms remain liable for ensuring compliance with the RRP Rule.

My firm acts as a general contractor – we subcontract the entire renovation job to other companies rather than using our own employees.  Under the Renovation, Repair, and Painting (RRP) Rule, does my firm need to have a certified renovator at the job site?

Not necessarily.  All firms performing renovations, including general contractors, must ensure that all individuals performing renovation activities on behalf of the firm are either certified renovators or have been trained by a certified renovator.  

A firm acting as a general contractor may satisfy this requirement by hiring another certified firm that also takes responsibility for ensuring that all individuals performing the renovation activities are either certified renovators or have been trained by a certified renovator.  

With respect to assigning a certified renovator who is responsible for any OJT and regularly directing other workers, a firm acting as a general contractor my satisfy this requirement by hiring another certified firm that in turn assigns a certified renovator to the job.  However, this does not discharge the general contractor’s liability to ensure compliance with the RRP Rule.

Everyone working on a pre-78 house must be a CLR:

I think this can easily be laid to rest simply by reading §745.90 (b)(2) A CLR “Must provide training to workers on the work practices they will be using in performing their assigned tasks.” I also think that this issue was also clearly explained in the prior two FAQ’s.

The CLR must always be on site:

§745.90 (b), makes it very clear on what a CLR is responsible for. Besides the few times that they are required to be on site, they must be available by phone if required.

The dreaded IRS and their independent contractor or employee test:

“If I train or instruct, that means that they are employees which opens me up to…” Ok, first a little bit of common sense – a General Contractor does this exact same thing every single day. We generally require that our subs sign an agreement with us, that establishes what our acceptable practices and standards are if you wish to work on our projects. Many Governmental Agencies, other business owners, realtors, homeowners also require the same thing quite commonly. This instruction or standards from a third party are nothing new and the IRS recognizes it. Taken from the IRS Pub 1779:

The courts have considered many facts in deciding whether a worker is an independent contractor or an employee. These relevant facts fall into three main categories: behavioral control; financial control; and relationship of the parties. In each case, it is very important to consider all the facts – no single fact provides the answer.