139 Days Later: RRP Penalty Guideline’s Established

About a month ago, I was asked to write a 300-word opinion piece on the RRP & where it stood 100 days later. In that piece, I made this comment about enforcement. “Enforcement: Well after being caught in a few lies, the EPA has effectively had its hands tied on the enforcement part. Supposedly, October 1st they are going to start enforcing certain provisions, but that appears highly doubtful; as word has been trickling out about them having their hands tied until after the new Congress comes into session.”

Well apparently, they have been working pretty quietly behind the scenes and have managed to get all their ducks in a row. In the following memo “Transmittal of the Interim Final Lead-Based Paint Consolidated Enforcement Response and Penalty Policy” dated August 19^th…

 This Policy is immediately effective and applicable, and it supersedes any enforcement response or penalty guidance previously drafted or issued for the PRE Rule or LBP Activities Rule. This Policy should be used to calculate penalties sought in all TSCA civil administrative enforcement actions or accepted in settlement of civil administrative enforcement actions brought under TSCA § 16 after the date of the Policy, regardless of the date of the violation.

The policy they are referring to is the “Consolidated Enforcement Response and Penalty Policy for the Pre-Renovation Education Rule; Renovation, Repair and Painting Rule; and Lead-Based Paint Activities Rule.” This policy is actually the last step they needed to start actually levying fines, so 119 days in and hunting season officially has started…

Current Exemptions:

There are only three provisions in the guidelines that are still exempted per the memo, but needless to say, there are a few strings attached;

• Certified Lead Renovators (CLR) – If you are in non-compliance because you do not have a CLR, you have till the end of this month (September 30^th, 2010) to get someone enrolled in a class. That individual has until the end of this year to successfully complete the class. (Level 3a – $4,500 to $22,500 per occurrence)
• Certified Firm (CF): Your screwed if you haven’t already completed the appropriate form & sent it in – you must receive your CF by the end of this month or face fines (Level 3a – $4,500 to $22,500 per occurrence)
• The Opt-Out: This little gray area, has been finalized (finally) – if you signed a project before July 6^th with the opt-out waiver, you can still complete them under that waiver. HOWEVER, they must be completed “as expeditiously as possible AND new projects may not be started”. So you can still sign up new projects, but you may not start on them until after all the opt-out projects are completed.

The 4 Levels of Enforcement:

If the EPA decides you have committed a violation, they have 4 courses of action they can pursue at their discretion;

• Notice of Noncompliance – theoretically painless as there is no fines attached and they may or may not require a certain action(s) be completed or corrected
  • May be used when the violator and / or violation has a “low probability of re-occurrence and low potential for harm” OR
  • May be used when a “violator is in substantial compliance with the requirement as the specific facts and circumstances support” BUT
  • You will only get one shot, as it may not be given “for a subsequent violation of a provision of the same rule (e.g., the RRP Rule) reoccurring within 5 years”
• A Civil Administrative Complaint aka civil penalty action is basically an Administrative Hearing & Review at the EPA’s location where fines and/or other actions will be levied  
• Civil Judicial Review aka turning the matter over to the DOJ and the US District Courts to force someone to comply with the regulations / seek injunctive relief
• Criminal Proceedings aka they feel that a person has knowingly violated any provision of the TSCA, or falsified information provided to the EPA

PDF of the new RRP Fine Structure

In tomorrow’s article, we will break what all these levels mean, the devil in the details regarding this enforcement policy & some of the hypocrisy found in it. In the mean time, I firmly believe that the best way to stay out of trouble- is to know the rules one has to live by. In that vein, we have included a number of resources for you to review to help you remain in compliance & hopefully avoid any unpleasant visits or mail.

The most important one: Know what the actual regulation states – The Regulation
EPA’s LEAD Home Page
HUD’s LEAD Home Page
OSHA’s LEAD Information

HRC Article: 2008 – RRP Pre-renovation Notice Requirement
HRC Article: 2009 – Quick Primer for Homeowner’s, and Rental Property Owners
HRC Article: 2009 – The Process of Remodeling a pre 1978 house
HRC Article: 2009 – To Test or Not to Test – that is the question
HRC Article: The RRP rule, OSHA and You
HRC Article: Clearing up misconceptions – HEPA Vacs, Tyvek Suits, Vertical Containment, 6/20 rule & demolition
HRC Article: Clearing up misconceptions – Certified Firms
HRC Article: Clearing up misconceptions – Certified Lead Renovators
HRC Article: Clearing up misconceptions – Lead Testing, Pricing, Logos
HRC Article: Clearing up misconceptions – 6/20 rule, demo, & windows
HRC Article: The LSHR & Renovate Right Brochure
HRC Article: New Record Keeping & Information Disclosure Requirements
All 32 HRC Articles on this Fiasco

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