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Phillip R. Bower
Tuesday, March 16, 2010

Wisconsin’s New Lead Renovation, Repair and Painting Rule: Will Your Project Be Affected?


Are you considering renovating a property that was built before 1978? If so, you will soon need to follow the requirements of the new Wisconsin Department of Health Services (DHS) Lead Renovation, Repair and Painting (RRP) rule. The DHS RRP rule is based on a similar rule finalized by the U.S. Environmental Protection Agency (EPA) in 2008. In order to avoid overlap between state and federal regulations, DHS promulgated an emergency rule (by revising Wis. Admin. Code Chapter DHS 163) in October 2009, that allowed Wisconsin to become the first state authorized to administer and enforce the RRP rule in lieu of EPA. The Wisconsin RRP rule becomes effective on April 22, 2010.
 
The Wisconsin RRP rule deals primarily with the certification and duties of individuals and companies performing lead abatement or similar activities in “target housing” or “child-occupied facilities” that were constructed prior to 1978. Target housing and child-occupied facilities includes all forms of residential dwellings (with a few exceptions), child care centers, and schools, as well as a building or portion of a building that is regularly visited by the same child under 6 years of age. The federal government banned lead-based paint in 1978, but many buildings constructed prior to that date still contain it. The rule applies to anyone who is compensated to perform work that disturbs potential lead-contaminated surfaces of more than 6 square feet of painted interior surfaces or 20 square feet of painted exterior surfaces in pre-1978 target housing or child-occupied facilities. The compensated renovator could include property owners or managers, general contractors, or skilled trade contractors such as plumbers, carpenters and electricians. The DHS estimates that the rule will impact approximately 15,000 Wisconsin businesses.
 
Companies or individuals that perform renovation activities must be certified by DHS and have the proper training and trained staff.   As part of the renovation project, they must notify owners and occupants of the renovation, follow lead-safe work practices, and maintain certain records related to the renovation for three years. They are also required to distribute the EPA’s lead-education pamphlet, “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools,” to owners and occupants before starting renovation work. Companies that wish to provide renovation training must also be certified by DHS.
 
If you are renovating in a jurisdiction other than Wisconsin, be sure to check whether that state has an authorized program or if the federal rule applies, as there may be different requirements. (EPA’s RRP rule becomes effective on April 22, 2010 in jurisdictions that do not have authorized programs.) For example, the Wisconsin rule is more stringent than the EPA rule in several ways. The threshold at which paint is defined as lead-based is lower in the Wisconsin rule than in the EPA rule. The Wisconsin rule also does not contain an EPA opt-out provision that allows renovators to be exempt from the rule if they obtain a certification from the owner that no child under 6 years of age and no pregnant woman resides in the building being renovated.
 
The major differences may be short-lived, however. After EPA’s RRP rule was finalized, several environmental and children’s health advocacy groups challenged aspects of the final EPA rule through a lawsuit and a petition to EPA, including the threshold and the opt-out provision. In response to those actions, EPA proposed changes to the rule and is working with other federal agencies to lower the threshold. Wisconsin, anticipating the proposed changes to EPA’s rule, already incorporated the changes into the state program. It is expected that the rules will be eventually be substantially similar, although the changes are still in the rule making process.
 
The specific requirements of the RRP rule are too numerous to fully discuss in this article. More information is available at http://dhs.wisconsin.gov/lead/ and http://www.epa.gov/lead/pubs/renovation.htm.
 
For questions or additional information, please contact Phillip Bower at (608) 258-7391 or pbower@whdlaw.com, or another member of the Real Estate Practice Group.
 
This article appears in the Winter 2010 Edition of the Real Deal Newsletter, presented by the Real Estate Practice Group of Whyte Hirschboeck Dudek S.C.


Related Practice Areas:

Commercial Real Estate
Environmental Law