Massachusetts Builders Blog

Ten New Year's Resolutions for Contractors

2011-12-27T13:06:00.000-05:00

Given the approach of the New Year, I have been reflecting on the mistakes that I see contractors make and how to prevent the severe consequences that can occur as a result. If you follow these resolutions, I assure you that you will prevent most conflicts with your clients, or at least protect yourself in the event of a dispute.

1. Make sure that all of your licensing and insurance policies are up-to-date. In most states, the penalties for not being properly licensed can be severe, including double or triple damages, attorneys' fees and costs awarded against you. Follow the requirements for your profession. If you do renovation work on pre-1978 homes, make sure that you are lead-certified. Have proper insurance to cover your business and your employees.

2. Learn how to properly estimate a job. This may be the biggest mistake I have seen contractors make this year. They have cut their margins and not allowed for increases in pricing of materials or labor in bidding their jobs. As a result, they are not allowing enough latitude for the inevitable issues that arise during a construction project. Within the last month I have received calls from at least four contractors who are having trouble getting paid, built all of their profit into the last payment, mis-bid the job and have to put money into it to finish. This is the way you make a living. Learn how to educate your customer and protect yourself.

3. Define the scope of the work. Educate your customers and make sure they know what they are getting. Clients will always assume they are getting granite when it is your intention to install Formica. Designate materials to be used clearly. Use as much detail as possible. If something is going to be "builder's grade," make sure the clients know what that means.

4. Make payment contingent upon milestones reached. Don't let your work get ahead of your payments, and don't let the payments get ahead of the work. This keeps both sides honest. If the payment gets ahead of the work, the owner may lose trust that you will finish the job. If you do your work ahead of the payments, the owner may start delaying when you ask for a check. Numerous disputes develop because the payments are not in balance.

5. Make sure you have a good written contract. Good contracts establish the expectations of the parties while the relationship is good. In law, a contract is a "meeting of the minds." It spells out the payments, scope of the work, date of substantial completion, warranties, basis for termination, dispute resolution alternatives, etc. I have written so many blog posts about why you need a good contract that I can't spell it out here, but read the archives. A good contract will help resolve any dispute. It protects everyone. Many states also require a written contract under the law.

In addition, have an attorney review your contract! This is well-worth the money, and will protect your business. It's a worthwhile investment and will help you sleep at night. Seriously. I even charge flat fees so clients can call me when they have a question about their contract.

6. Have written contracts with your subcontractors. I get it. Most of you have been working on a handshake with your subs for years. However, now is the time to change your policies and have a written agreement. Your subs should agree to indemnify (pay you back) you if a claim is brought against you for something they did. You should have a written scope of the work so the responsibilities are clear. Under the RRP rule, you must submit your documentation to the homeowner within thirty days of completing the job or upon final invoice. You therefore need the documentation from your subs before they get paid. This is in the archives as well.

7. If you are working on a time and materials basis, invoice your clients weekly. I promise you that if you have a T & M contract with your clients, one day they will wake up and realize that they have written you a blank check. If you invoice them infrequently, they will have no way of checking whether your labor charges are fair. They are also more likely to dispute your charges if there is not total transparency in your billing. T & M contracts do not work well for the contractor who does not maintain good business practices. You must communicate with your clients at least weekly by email or in person to keep them apprised of costs and whether you are working within your budget. If not, you could have a nightmare on your hands as lawsuits about overcharging are very expensive to litigate.

8. Designate who has the authority to make decisions in your contracts. This is necessary from the homeowner as well as the contractor side. You do not want your clients asking your subs if they can make change orders and having them rely on their response. You want them to know who has the authority on the job site or how to reach the contractor by email or cell. You also want to be able to rely on the instructions that are given by clients. I see these issues arise most frequently between spouses. If one spouse authorizes a change order, you don't want the other one saying that it was not okay. It's nice to be able to point to the contract and say that you relied on a person with authority.

9. Make sure your clients know that the job will probably exceed the budget by at least ten percent. If I had a dime for the number of homeowners who have been shocked by the fact that their job exceeded their budget, I would be a rich woman. It is your job to educate your clients. Do not be coy. Tell them that more often than not, there are concealed conditions that will increase the cost of the project. Make sure they have a cushion built into their budget. I can't tell you how many homeowners are blatantly refusing to pay for change orders because they were unanticipated. Tell them, and then tell them again.

10. Finally, all change orders must be in writing and signed by the parties! They must state the change in the contract price and how the date of substantial completion will be affected by the change. This sounds so simple, but I bet I could prevent 90% of all disputes if contractors and homeowner would follow this simple rule. Contractors laugh when I say that homeowners always believe that a minor change (can you add two outlets?) is free, and homeowners are always shocked when they are charged for verbal change orders. Never, ever rely on a verbal change order. Document everything. E-mails are fine. Just make sure you have a return receipt to show that they are read.

Happy New Year! Hopefully I just saved you thousands of dollars worth of legal expenses in 2012.

When the EPA Comes to Call

2011-11-16T23:47:00.001-05:00

I received a call last week from a home contracting company in the Midwest about a franchisee who had received a letter from the EPA. They were advised that a representative would be coming to their offices or the job site to review their procedures under the Renovation, Repair and Painting Rule. Given that the federal fine can be as high as $37,500 per day, per infraction, they were quite concerned about how to handle this visit and avoid any problems. I advised the following:

1. Establish whether your work is covered.
a. Is renovation work being done on pre-1978 homes?
b. Does the work disturb at least 6 interior sq. ft. of paint or 20 exterior sq. ft.

2. Put together a loose-leaf notebook with your certified firm and certified renovator certificates. Include any initial course completion certificate and the most recent refresher course completion certificate.

3. Have a file for each homeowner with an acknowledgement that the Renovate Right booklet was received by the homeowner.

4. Maintain documentation to show that the certified renovator was on site during posting of signs, work-area containment and cleaning verification.

5. Demonstrate that on-the-job training was provided to other workers (who have not taken the certified renovator training course) on the lead safe work practices to be used in performing their assigned tasks.

6 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. Take pictures to provide evidence that the rules were followed!

7. When requested by the party contracting for renovation services, must use an EPA recognized test kit or
must collect paint chip samples, submit them to an EPA-recognized laboratory, and obtain test results from the laboratory to determine whether components affected by the renovation contain lead-based paint.
(For more information regarding test kits call the National Lead Information Center at 1-800-424-LEAD
(5323), or check our web site at www.epa.gov/lead/pubs/renovation.htm). Note: you must assume leadbased paint is present for housing and buildings covered by this rule, unless testing is done that determines
the components affected are lead-free.

8. Show that the certified renovator was available, either on-site or by telephone, at all times the renovations were being conducted.

9. Keep documentation of the project cleaning verification.

• All documents must be retained for three years following the completion of a renovation.
• Records that must be retained include:
• Reports certifying that lead-based paint is not present.
• Records relating to the distribution of the lead pamphlet.
• Documentation of compliance with the requirements of the Lead-Based Paint Renovation,
Repair, and Painting Program. This information must also be given to the owner and, if different, the
occupant of the housing or unit that was renovated (EPA has a sample form that is available at
www.epa.gov/lead/pubs/samplechecklist.pdf)

When the Homeowner Cuts Corners

2011-11-10T10:25:00.000-05:00

I have encountered a new issue in home renovation projects that should put contractors on alert. Perhaps it is even time for a new contract clause. I assume this is due to the state of the economy and the widely available access to information on the Internet, but homeowners are taking their construction into their own hands. In one situation, the homeowner insisted on buying her own fixtures at a well-known hardware chain and asked the contractor to back the allowances out of the contract price. In another, the contractor was told which personnel were acceptable on the job and was presented with a never-ending punch-list.

In both situations, the outcome was the same; contractors were seeing their profit margins dramatically reduced. What to do? As always, the responsibility for educating the homeowner falls on the contractor. The homeowner needs to understand that the budget should allow for at least a 10% increase over the contract price as a result of unanticipated change orders. In addition, I strongly recommend that contractors build in a cushion into their pricing and that they mark up all supplies and labor.

You may think you are doing the homeowner a favor by passing on items at cost, but you are not allowing for overhead and other costs. The homeowner must understand that the contractor has a relationship with his suppliers and will have more control over quality, timing of delivery and installation of fixtures if he arranges for the purchase of these items. For that reason, I am considering including a clause in my contracts that states that the homeowner may not start bargain-hunting for supplies. I already include a disclaimer for owner-supplied materials, but perhaps it is time to insist that homeowners stop micro-managing the process. Or, alternatively, perhaps the contractor should insist on a mark-up if the homeowner wants to buy his own materials.

Finally, the homeowner needs to be taught what is an appropriate punch-list item and what is not. I have a lengthy description in my contracts about what constitutes punch-list, latent defect and warranty items. There should be a time limitation for identifying punch-list items and having them addressed. Projects need to end.

These situations are remarkably similar to parenting. Contractors need to set limits with their clients and define the scope of the relationship in addition to the scope of the work. After all, they need to be able to earn a living!

ADR in Construction Disputes

2011-10-15T17:26:00.000-04:00

I just read a useful article on arbitration in construction disputes by attorney Robert C. Hendrickson of Duane Morris. You can read it here: http://www.jdsupra.com/post/documentViewer.aspx?fid=ccec1931-5c2e-4607-a7ad-fcb3481513d3&utm_source=twitter&utm_medium=jds&utm_campaign=building

Your Contract Was the Best Money I Ever Spent

2011-05-27T23:32:00.002-04:00

A client really said this to me last week. He said the difference between having my contract now vs. when he had a similar problem many years ago was that now he can sleep through the night. Here's the story: client was doing a major construction job for a homeowner. The homeowner was delaying in making decisions, and the contractor was wondering if he could terminate the contract before making a major outlay for the next step.

He called me, and I looked at his contract, which included the following provision:

"If Owner fails to comply with the provisions of this Contract, Contractor may terminate this Contract and retain any deposit or monies received as liquidated damages, or at the option of Contractor, Contractor may proceed for specific performance or any other available legal or equitable remedies.

Owner will be in default under this Contract if any of the following events take place:

(b) Owner in any way fails or refuses to perform any provisions of the Contract and the Contract Documents required of Owner."

Since the Contractor could terminate the contract if the Owner did not perform any provisions of the Contract (the homeowners were causing an unreasonable delay), the Contractor was within his rights to cancel the contract.

This situation demonstrates the importance of a good contract. The contract clearly spelled out the Contractor's rights when the Homeowners were not cooperating. This saved him a huge amount of anxiety over an uncomfortable situation. As we lawyers like to say, "you can pay me now or pay me later, but later is always more expensive."

So, investing in a good contract will protect you if issues arise over the course of your project. I would also like to add that it was awfully nice to have a client appreciate the work I did for him.

Time for "Spring Cleaning" in Construction

2011-04-26T09:00:00.001-04:00

When the Renovation, Repair and Painting Rule came into effect, there was a flurry of activity as contractors became concerned about how it would affect their businesses. They were facing the additional costs of certification and compliance and started thinking about lead poisoning in a way that they never had before.

There was always a group of contractors who thought that it was all smoke and that it was not worth the effort. They never got trained or certified, and were/are able to underbid their competitors for renovation jobs.

As months passed, I heard the buzz of angry contractors who made the effort to do it right and follow the law. Many felt that it was a joke. Registration in certification classes waned. At the same time, the economy has improved, and contractors are getting back to business. They don't have as much time to learn the nuances of OSHA or deal with paperwork.

In the last two months, however, stories have started cropping up around the country about fines. All of a sudden, contractors and construction companies are being visited by the EPA, OSHA and the Department of Labor to see if they are following the RRP Rule, OSHA safety practices and maintaining proper worker's compensation insurance. The government may start fining businesses for the classification of employees as independent contractors. Compliance is becoming more important.

So, as you prepare for warmer weather, it is time to do some internal "spring cleaning." Make sure that your insurance coverage is up to date and as comprehensive as it should be. Follow the laws and maintain proper documentation. Consider having your contracts reviewed to make sure they are in compliance with your states' laws and that they adequately protect you. As they say, "better safe than sorry."

Worker's Compensation Information Available Online At the Massachusetts Department of Labor Website

2011-04-25T23:30:00.000-04:00

Mark Paskell first posted this at his blog,

http://www.thecontractorcoachingpartnership.com/Blog-Contractor-Coaching--Construction-Business-Coach-EPA-RRP-Lead-Rule/, but I think it is so important that I wanted to post here as well. Make sure all of your subcontractors have worker's compensation policies if they have employees. If not, you may be held accountable if someone gets injured on the job. Bravo to the government of MA for making this information available to the public.

Here is a brief excerpt from the Massachusetts Department of Labor website;

Patrick - Murray Administration Launches Free Web-Based Tool

Will help Public Verify if Businesses have Workers Compensation Insurance Policy

Boston, MA - The Executive Office of Labor and Workforce Development (EOLWD) today announced the launch of the Massachusetts Online Proof of Coverage Application (POC), a free web-based tool that will assist the public in verifying whether a particular business has a current workers’ compensation insurance policy.

While the POC application is not designed to detect fraud, it may also assist EOLWD’s Department of Industrial Accidents’ investigations in determining whether fraud exists.

Employers are required by law in Massachusetts to carry workers compensation insurance to assist workers in the event that they are injured on the job. While the vast majority of Massachusetts businesses carry a policy, those who are not in compliance shift the burden onto those business that do. As a result, over $53 million has been paid out of the Workers’ Compensation Trust Fund over the past 10 years to pay for injury claims of workers who were employed by businesses that were not in compliance. DIA works closely with businesses through payment plans and more aggressive enforcement measures to make sure they are compliant.

EPA Starts Assessing Fines for RRP Violations

2011-04-04T00:05:00.001-04:00

From Mark Paskell's blog:

http://www.thecontractorcoachingpartnership.com/Blog-Contractor-Coaching--Construction-Business-Coach-EPA-RRP-Lead-Rule/

The press release below came from the EPA. It has been hard to persuade contractors that they need to become certified when it did not appear that the Renovation, Repair and Painting Rule was being enforced. Now, there have been two substantial fines publicized: one in Connecticut last month ($30,700) and the one listed below. It is time to have your contracts reviewed, insert clauses to protect you under the new law, and have your insurance policy reviewed for lead coverage!

Kansas City, Kan., March 31, 2011) – Window World of St. Louis, Inc., has agreed to pay a $19,529 civil penalty to the United States to settle allegations that it failed to notify owners and occupants of at least 20 St. Louis area residential properties built before 1978 of lead-based paint risks prior to performing renovation work at those locations.

According to an administrative consent agreement filed by EPA Region 7 in Kansas City, Kan., the window replacement company, located in Maryland Heights, Mo., was legally required to provide owners and residents of the properties with an EPA-approved lead hazard information pamphlet before starting renovations at the properties.

Provision of the lead hazard information pamphlet to property owners and occupants is one requirement of the Residential Lead-Based Paint Hazard Reduction Act, which Congress passed in 1992 as an amendment of the federal Toxic Substances Control Act (TSCA).

The regulation is intended to protect owners and occupants of residential properties, child care facilities and schools built before 1978 from health risks associated with lead-based paint. Lead-based paint was banned for residential use in the United States in 1978. Most homes built before 1978 contain some amount of lead-based paint, and subsequent renovation activity of such properties can cause occupants to be exposed to dust, chips and debris that contain lead.

The Residential Lead-Based Paint Hazard Reduction Act requires renovators of such properties to obtain certified training, follow safe work practices, and take specific steps to make owners and occupants aware of health risks associated with lead exposure before renovation work occurs.

As part of its settlement with EPA, and in addition to paying the $19,529 civil penalty, Window World of St. Louis has agreed to perform a supplemental environmental project, through which it will spend an estimated $20,048 to replace a total of 73 old windows contaminated with lead paint at three group home facilities operated by the non-profit social services organization Youth in Need. Those facilities are located at 1420 N. 3^rd Street, 516 Jefferson Street, and 529 Jefferson Street, in St. Charles, Mo.

Automation of Surveying Presents More Job Opportunities, Better Pay

2011-03-10T11:37:00.000-05:00

Here's a new post from Houston Neal:

Surveying is going through a technological renaissance. The increased adoption of machine guidance systems has renewed the importance of the surveying trade. This technology calls for a highly-trained workforce, and surveyors are the most qualified for this job. But to get in on the action, surveyors need to learn to use this technology and re-brand themselves.

GPS Machine Control Has Replaced Traditional Staking

Unless you’ve been sleeping behind the wheel, you’ve likely heard of GPS machine control. Also referred to as machine guidance or automated machine control, these systems are widely used by heavy construction companies. They speed up work, improve grade accuracy and improve the billing and scheduling accuracy of jobs. For example, by calculating the amount of material moved in a day, they can substantiate bills or keep employees on schedule.

The premise behind the technology is simple: just like using GPS in your car, a GPS machine control system tells excavators where to drive equipment. Additionally, these systems indicate the grade to excavate at. Depending on which version is being used, machine control systems either provide instruction on where to position the blade or automatically do it for drivers.

GPS machine control systems replace surveyors’ old jobs - especially staking. Traditionally, machine operators relied on stakes for both position and grade information. With machine control, this information is relayed in real-time to a unit on the driver’s dashboard.

So if staking is no longer necessary, are surveyors still necessary? Absolutely. Historical roles like boundary resolution and topographic survey work cannot be automated, so surveyors will always be needed for these. But they are also the best people to take on more modern duties, such as managing the GPS machine control system.

A Picture of the Modern Surveyor

To stay relevant on the job site, surveyors need to take ownership of three roles: they need to calibrate the site, prepare data for the machine control system, and provide quality control and assurance of the finished grade.

Before any construction begins on a job site, surveyors are needed to set up the geodetic control. This is a reference system used to determine GPS coordinates. After the geodetic control points have been determined, the base station can be set and the site can be calibrated.

The next step is to create the 3D model that will be used in the machine control system. This is a huge opportunity for surveyors. Preparing data for the machine control system can be difficult and many contractors don’t want the extra liability. So they either outsource or hire exclusively for this task; some even dedicate entire teams to data preparation.

To own this process, surveyors must first learn to work with paper plans and CAD files. 3D data models are made with both types of plans. Often surveyors have to clean up drawings before building the 3D model. So it’s essential that they are familiar with the various file formats, to understand how to use them, and to be able to build the models afterwards. Finally, these files will need to be converted into a machine-ready format and uploaded into the machine control system.

“Someone has to have their fingers on manipulating the design into a format that goes into the computers on the machine guidance systems,” explains Tom Taylor, Chief of Surveys Coordination and New Technologies For Caltrans District 4 Surveys. “The best people to do this are surveyors. It’s a niche that surveyors are in the best position to provide this service for.”

Once the site has been calibrated and the data has been uploaded into the machine control system, construction can begin. But the surveyors role doesn’t end here. They will be needed during construction to monitor the machine control and to deliver quality control and assurance. No one is more qualified to provide quality assurance of grades than the surveyors.

Training and Branding: the Keys to Unlocking Job Opportunities

To take advantage of these job opportunities, surveyors need to learn to use this technology and “re-brand” themselves. As mentioned above, they will need to learn how to work with CAD files, how to develop 3D models for machine control and how to transfer data into the machine control systems.

“Maintain your expertise in the technology,” suggests John Watson, President of the Texas Society of Professional Surveyors. “Surveyors have always been at the forefront of technology and they need to stay that way. Always be learning. Always be training on new equipment.”

They should also become familiar with the major machine control packages on the market from companies such as Caterpillar, Leica, Topcon, Trimble and GeoPac, the software used by many branches of the Department of Transportation (DOT). Surveyors can get training directly from these companies, or one of the many partners that resell these systems.

In addition to getting training, surveyors need to brand themselves as machine control experts. Contractors, land engineers and surveyors are all vying for this title and no one has proved themselves in the role yet. Land surveyors are the most qualified for the job, so they should position themselves accordingly. And to support this claim, they need only point to the existing state laws that require surveyors to be part of the machine control setup process.

Salient Points

● Surveyors have an opportunity to work in more professional roles that require more thought than swinging a hammer or pounding a stake

● To win more jobs, surveyors need to take ownership of the following tasks:

○ Site calibration

○ Data preparation

○ Quality assurance and control

Promote your GPS Machine Control Services

If you are a land surveyor and want to promote your own services, join our free directory. A profile includes your company contact information, description of services and a link back to your website. For more information, contact Houston Neal (houston@softwareadvice.com).

This article originally appeared on Software Advice, a free online resource for heavy construction software. You can view the original article at: Automation of Surveying Creates Disruption and Opportunities.

Sick of RRP? It's Still Time to Update Your Contract

2011-01-11T22:10:00.001-05:00

So am I. Really. All this talk about RRP and it feels like nothing's changed. The threatened fines have not really transpired, and today doesn't feel any different from yesterday. I can speak about Massachusetts, but Wisconsin, Iowa, North Carolina, Mississippi, Kansas, Rhode Island,Utah, Oregon, Massachusetts, and Alabama now have their own state's laws, and I am not sure what is happening there in terms of enforcement. RRP has done one good thing, though. It has encouraged contractors to review all of their business practices and make sure that their contracts protect them.

Quite honestly, I tried to market my legal services to contractors reviewing their contracts a number of years ago. I could not get anyone interested. Business was booming and contractors had a backlog of work. Then, two things happened. The construction industry became one of the hardest hit by the economic downturn, and RRP went into effect. Homeowners and contractors also began fighting about smaller amounts of money and contractors who had never been sued were finding themselves as defendants.

I wasn't happy about the reason, but I was glad to be given the opportunity to review contractor's contracts. I found that many were not in compliance with state law, and that contractors frequently did not have clauses entitling them to their attorney's fees if they had to go after homeowners for payment. They didn't include the right to collect interest for late payment, or bases for terminating the contract.

So, as I became an expert in the Lead Law, I developed clauses to help protect contractors when dealing with RRP as well. I also came to the decision that I should charge the way contractors charge, with flat fees rather than hourly billing for my contracts.

One of the things that scares the public about hiring lawyers is that their fees are unknown. I decided it is better to make my fees transparent. So, for $495.00, I will send you my lead paint clauses. If you want me to review your contract, e-mail it to me. I will review it and let you know if it needs work and make sure it is in compliance with your state's law. I will have an attorney from your state double-check if I am not as familiar with your state.

A home contractor/homeowner renovation contract and contractor/subcontractor contract is $1375.00.

Add a residential new construction contract and the total price is $1950.00.

I will provide quotes for additional contracts and/or states.

I also send out newsletters with additional information about construction law. Please e-mail me if you would like to receive my newsletter. My e-mail is ajg@andreagoldmanlaw.com. I look forward to hearing from you.

Lead-based Paint Renovation , Repair and Painting Rule

2011-01-09T19:00:00.001-05:00

The Renovation, Repair and Painting Program went into effect on April 22, 2010. Contractors were scrambling to become certified and make themselves familiar with the law's requirements. Now contractors are waiting to see if the law is going to be enforced and if companies will be fined for violations. It is my responsibility to read the law and to predict where the legal issues will arise so that construction companies can protect themselves. It is time to start the new year right and have your contract reviewed for compliance with state and federal law with clauses that protect you and your business.

By now, most contractors know that RRP applies to all pre-1978 homes where more than 6 sq. ft. of painted surface or 20 sq. ft. of exterior painted surface will be disturbed. From the EPA:

The Toxic Substances Control Act (TSCA) addresses lead-based paint hazards created by renovation, repair, and painting activities that disturb lead-based paint in target housing and child-occupied facilities. ‘‘Target housing’’ is defined in TSCA section 401 as any housing constructed before 1978, except housing for the elderly or persons with disabilities (unless any child under age 6 resides or is expected to reside in such housing) or any 0-bedroom (studio for example) dwelling. Under this rule, a child-occupied facility is a building, or a portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day’s visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours. Child-occupied facilities may be located in public or commercial buildings or in target housing.

The Rule does not apply to those who are not doing work for compensation, so homeowners renovating their own homes are exempt. It does not apply to post 1978 buildings, new construction, minor repairs or public or commercial facilities not occupied by children under 6. It also would not cover minor repairs or work that does not disturb painted surfaces. Contractors need to be careful however, because they cannot simply rely on homeowner assurances that the home was built after 1978 if there seems to be evidence to the contrary.

Contractors who work on pre-1978 homes are required to certify their firms with the EPA, and take the 8-hour certification course if they are going to be disturbing lead paint themselves. I recommend that they keep documentation of the lead-safe practices for more than three years, because the statute of limitations for a lead-poisoned child does not even start running until that child reaches the age of eighteen.

So, even if the law is not being enforced, protect yourself and your family by following the lead-safe practices. Let the homeowner know that you are a professional, and you intend to follow the law and protect them as well.

A Dog and a Truck, or Why RRP May Not be a Bad Thing

2011-01-02T15:44:00.000-05:00

I spent the better part of 2010 learning about the EPA's Renovation, Repair and Painting (RRP) rule and helping contractors understand the law and protect themselves with well-drafted contracts. I made more presentations than I can count to contractors and construction companies in the northeast, and I heard about their pain: RRP compliance would cost them a lot more money. Homeowners had not heard anything about the law and were appalled when they learned that their renovation projects would cost more. Illegal contractors were undermining their ability to get jobs by failing to get certified and refusing to follow RRP. At the same time, however, I think that most contractors would agree that not just anyone should be able to call himself a contractor.

Contractors should have training and experience. They should know about OSHA and other safety regulations and use them. As power tools have developed over time with more safety features built in, construction is a lot less dangerous than it used to be. Most people would agree that that is a good thing. Construction is moving towards becoming a profession. It has become more regulated (most states have home improvement contractor laws), and licensing is usually required. In other words, it no longer takes just a dog and a truck to be a contractor.

I have experienced that development in the field of mediation. When I originally became a mediator in 1996, anyone could hang out a shingle and call him/herself a mediator. Now there are training courses and internship requirements in most states. In addition, many areas of mediation now require certification.

There are definitely growing pains in the development of any profession, and I believe that RRP falls in that category. It is a challenge for most contractors, but it also gives contractors the opportunity to distinguish themselves. They can proudly display their lead-safe certification on their websites and other advertising. They can let clients know that they are fully licensed and insured. They make it clear that their job is to protect the homeowner as well as themselves. In a few years, the RRP rule will just be considered par for the course; the same as becoming licensed or complying with OSHA. So, quite frankly, I do not believe that it is a bad thing in the long run.

I would like to thank some people for the wonderful opportunities I have had this year to develop my expertise in the lead law and learn more about the field of construction. Mark Paskell, from the Contractor Coaching Partnership, told me that RRP was going into effect and it was going to be important. http://www.thecontractorcoachingpartnership.com/ His guidance has been invaluable. Shawn McCadden is an incredible resource for contractors. He and I have now presented together at a number of workshops, and I am always impressed by his knowledge and entertaining presentations. http://www.shawnmccadden.com/ When Shawn speaks, contractors listen. I also want to thank the folks at A.W. Hastings for giving me the opportunity to give presentations throughout New England. http://www.awhastings.com/ I ended up learning about a number of states' construction laws and got to travel and meet contractors along the east coast.

Happy New Year to all!

RRP and Individual Liabiliy

2010-12-26T11:30:00.001-05:00

A number of months ago, when I was interviewed by NARI (National Association of the Remodeling Industry) radio, I was asked if a contractor could be held liable for he $37,500 fine per infraction, per day that can be enforced by the EPA for RRP violations. It has taken me quite some time to get a clear answer to this question, but here is the response I received from the EPA recently:

The Agency has always interpreted liability under TSCA (Toxic Substances Control Act of 1976) to cover individuals, partnerships, corporations, government organizations, etc. TSCA section 409 states clearly that it is unlawful for any person to fail to comply with any rule promulgated under TSCA Title IV. Section 16 then says that any person who violates section 409 is liable for a civil penalty. We have always interpreted "person" under TSCA to apply to both natural persons (individuals) and statutory or judicial persons (corporations). Thus, any individual who violates a provision of the RRP rule is liable for a penalty, as is the firm that the individual works for. We don't typically take enforcement actions against individuals, as we prefer to act against the individual's employer, but that doesn't mean that we can't assess a penalty against an individual.

Now if the question raised has more to do when a corporate entity is named in a complaint and subsequently found liable for a penalty, but the corporation doesn't have assets to pay the penalty, can the CEO, who is a natural or individual person, be held liable for that penalty? This seems to be a question of Corporations Law that the private attorney will need to research and answer for her client.

So, as a contractor, if you violate the Renovation, Repair and Painting Rule, you could be held individually accountable for your actions. If you are a contractor or run a construction company, the rules are:

1. Obey the law! If you do renovation work on pre-1978 homes, become certified, get trained, hand out the Renovate Right booklet and protect yourself and the homeowner by sealing off the area, using respirator masks and HEPA vacuums.

2. Maintain corporate practices. Keep your corporation separate from your individual assets. Maintain separate bank accounts, sign your contracts as a representative of your corporation, file corporate documents and follow all corporate formalities.

3. Protect your personal assets. Consult a lawyer about the best way to protect your home and other large assets.

The best way to avoid liability under RRP is to simply comply with the law. However, there are additional steps one can take to protect assets. If you follow the rules, you should be fine.

Test for Lead, and Then You're Off the Hook?

2010-11-17T10:42:00.000-05:00

I have run into so many contractors who think they can solve the dilemma of how to handle the RRP rule by having the house tested for lead. There are now approved lead test kits out there. All the contractor has to do is test, and if the house if negative, proceed with the work without doing the lead-safe practices. That's it, right?

Not so fast. Consider the following scenario:

Contractor tests for lead. Negative result. Four to twenty-one years later, the contractor is sued because a member of the household is suffering from lead poisoning. Contractor contacts the lead test kit company (if it is still in existence). How does the company respond? Will they stand by their product? Or, will they request documentation of all of the testing procedures including where the test was conducted, how it was conducted and verifiable results? What if they say the testing was conducted improperly, or inadequately?

Why face an additional risk by doing your own testing? If the homeowner wants to test the home, have them contract with a lead testing company directly who will stand by its results. Better yet, if you contract with them, have them sign an indemnification clause where they will protect, defend (provide a lawyer) and pay you back if you are held accountable for poisoning after a negative result. After all, why take on the additional liability?

I would love comments from the lead testing kit companies.

The Massachusetts Prompt Pay Law

2010-10-27T22:41:00.000-04:00

The new MA Prompt Pay Law goes into effect on November 8, 2010. It applies to construction projects of >$3,000,000.00 and effectively eliminates the use of "pay when paid" clauses for these projects. The law details the required payment schedules for General Contractors to Subcontractors to their subcontractors and so on. There is a nice write-up about it at Massachusetts Real Estate blog:

http://www.massrealestatelawblog.com/massachusetts-construction-prompt-pay-law-passed/

Unfortunately it does not apply to most residential construction, whereas the prompt pay laws in some other states (such as Rhode Island) do apply.

Should a Contractor Have the Homeowner Test for Lead?

2010-10-27T21:50:00.000-04:00

I would like to learn more about the advisability of lead testing. Homeowners might not want their homes tested for lead, because it becomes public record, and may interfere with the sale of a home or the ability to obtain a mortgage or homeowners insurance. In addition, I strongly advise contractors not to do the testing themselves. Let the homeowner pay an independent company to do it. Otherwise if the GC brings a claim against a lead testing company for a false negative, the company might state that the GC did not use the test kit properly. If the homeowner does have the house tested, consider refusing to do the work unless the homeowner has lead abatement work done.

Listen to Andrea on NARI Radio Speaking about the RRP Rule

2010-10-19T00:06:00.002-04:00

http://freestoneblogs.com/nariradio/2010/10/01/10-1-2010-legal-ramifications-of-lrrp/

Seminar with the Division of Occupational Safety-MA Lead Law

2010-09-28T00:49:00.000-04:00

Last week I attended a Lead Health Awareness Seminar run by the Division of Occupational Safety, It dealt with complying with OSHA, the EPA and State Lead Regulations. I learned a great deal about the requirements of the Occupational Safety and Health Administration as the regulations pertain to lead. I have more to learn, but here is what I know so far:

1. Certain activities are trigger activities that trigger the protections required by OSHA. These protections include using setting up regulated areas, providing respirator masks, hand washing and protective clothing.

2. Scraping lead paint is one of many trigger activities.

3. "The employer shall assure that no employee is exposed to lead at concentrations greater than fifty micrograms per cubic meter of air (50 ug/m(3)) averaged over an 8-hour period."

4. Once a contractor has the work site tested for airborne lead dust, if the amount of lead in the air is less than 30 ug/m(3) (Action Level), then compliance with the OSHA Lead in Construction Standard is not necessary. A contractor would still have to provide chemical hazard training, hand washing facilities, and proper housekeeping.

5. However, the requirements of the MA Lead Safe Renovation law still apply.

More information to follow...

Why You Need a Contract with your Subcontractors-Now More Than Ever

2010-09-04T21:15:00.000-04:00

Most of the general contractors I know have been working with their subcontractors for years. Business has always been done on a handshake and things have mostly worked well that way. However, thanks to the EPA Renovation, Repair and Painting Rule, times have now changed. Although no one can contract away liability in terms of compliance with the Environmental Protection Agency, both contractors and subcontractors will not want to be held responsible for each other's work.

General contractors need to have contracts with subcontractors with a very clear scope of the work to define exactly what falls within the subcontractor's purview. If the subcontractor is going to be disturbing enough lead paint so the RRP Rule kicks in, the GC will want to make sure that the sub signs an indemnification clause stating that he will defend and indemnify (pay back) the GC for any claim against the GC for damages due to the subcontractor's work, including the cost of hiring an attorney.

The general contractor will also want to make payment to the subcontractor contingent upon receipt of the subcontractor's documentation of the lead-safe practices and once the cleaning verification has been satisfied.

Finally, general contractors should seriously consider whether they are willing to hire subcontractors who have not gotten their Certified Renovator certificate. If the sub is not certified, then the GC is responsible for on the job training and supervision of the work that disturbs lead paint. In that event the GC is incurring possible liability and may be considered an employer, which invokes a whole other host of problems including being required to file taxes for the sub as an employee, etc.

So, now is the time to change your work practices and have signed contracts with your subcontractors. I can help with that.

Comparison of the EPA RRP Rule and the Massachusetts Lead-Safe Renovation Law

2010-08-26T11:03:00.001-04:00

The DOS has provided us with an excellent comparison of the EPA rule and the Massachusetts law. Here is the link:http://www.mass.gov/?pageID=elwdterminal&L=5&L0=Home&L1=Workers+and+Unions&L2=Licensing+and+Certification&L3=Lead+Program&L4=Lead+Documents&sid=Elwd&b=terminalcontent&f=dos_lead_RRP_comparison_epa_dos_rrp&csid=Elwd

I would add an item. The EPA rule requires that contractors provide the homeowner with documentation of the lead-safe practices upon final invoice or within 30 days of the completion of the renovation. I have been unable to find such a requirement in the MA Lead-Safe Renovation Rule. I spoke with someone at DOS, and he could not find anything in the MA law either. I

Understanding the MA Lead Law-The Fine is No More Than $5000.00!

2010-08-06T13:58:00.000-04:00

A source of huge relief to contractors will be that the fine for noncompliance with the law has been dramatically reduced to no more than $5000.00 for an infraction. The law states as follows:

Penalties. Any entity or person who violates the provisions of 454 CMR 22.00 shall be subject to the administrative sanctions specified herein and any fines or penalties allowed pursuant to M.G.L. c. 111, § 197B(f) and M.G.L. c. 149, § 6.

After reading through the various laws, the penalty structure is as follows:

(2) Maximum Amounts of Civil Penalties. The maximum amounts of Civil Penalties that may be assessed under 453 CMR 9.00 are as follows:
(a) A monetary penalty of not more than $1,000 may be issued for each Violation if:
1. the person, firm, corporation or other entity has not previously been criminally convicted of a Violation of M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or been issued a Civil Citation pursuant to 453 CMR 9.00; and
2. the Commissioner has determined that the person, firm, corporation or other entity lacked Specific Intent to violate M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or 453 CMR 9.00.

(b) A monetary penalty of not more than $2,500 may be issued for each Violation if:
1. the person, firm, corporation or other entity has not previously been criminally convicted of a Violation of M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or been issued a Civil Citation pursuant to 453 CMR 9.00; and
2. the Commissioner has determined that the person, firm, corporation, or other entity possessed a Specific Intent.

(c) A monetary penalty of not more than $5,000 may be issued for each Violation if the person, firm, corporation or other entity has previously been criminally convicted of a Violation of M.G.L. c. 111, § 197B; M.G.L. c. 140, §§ 46A through 46R; or M.G.L. c. 149, §§ 6A through 6F½; or been issued a Civil Citation pursuant to 453 CMR 9.00.

So, at the end of the day, this translates to a penalty of no more than $5000.00, and that's only if the person, firm or corporation as been previously criminally convicted or issued a Civil Citation.

As I have been told, the Division of Occupational Safety does not have the goal of issuing fines; the goal is to have renovators comply with the law.

Key Differences Between the RRP Rule and the New Massachusetts Lead Law

2010-07-24T12:50:00.000-04:00

454 CMR 22.00: Deleading and Lead-Safe Renovation Regulations

The good news for MA contractors is that the new lead law is well-written, and very similar to the RRP Rule. The law bridges the gap between renovation work, deleading and OSHA regulations. Since most of my readers do renovation work or new construction, I am going to set aside the rules regarding deleading. So, what do MA contractors need to know to stay in compliance with the state law?

First of all, if you have trained as a Certified Renovator through a training accredited by the EPA, you are automatically a Lead-Safe Renovator Supervisor in MA. The two certifications are equivalent.

If you have already applied and received certification as a Certified Firm with the EPA, then you need to apply for a waiver to be listed as a certified firm in MA. You can access the waiver form,

Lead-Safe Renovation Contractor Licensing Waiver here.

If you have not already applied to become certified with the EPA, you will need to apply to be certified with the state. The fee is $375.00. The form is available here:

Lead-Safe Renovator Contractor

Here are the requirements for the Lead-Safe Renovator Supervisor:

(4) Responsibilities of Certified Lead-Safe Renovator-Supervisors or Licensed Deleader-Supervisors at Renovation Worksites. The Supervisor assigned to the Renovation Project in accordance with 454 CMR 22.03(4) and 454 CMR 22.11(3)(f) shall:

(a) Carry out, or sufficiently oversee workers in the performance of, the work practices specified by 454 CMR 22.11(9) to ensure compliance with the same.

(b) Provide on-the-job training to workers in the work practices they will be using in performing their assigned tasks.

(d) In the absence of testing carried out by a Licensed Inspector or Risk Assessor, use a Recognized Test Kit to determine the presence of lead on components that would be affected or disturbed during Renovation Work or assume that all components that would be disturbed by the Renovation Work contain or are covered by paint or other materials containing Dangerous Levels of Lead.

(e) Perform the visual clearance and cleaning verification required by 454 CMR 22.11(9)(h).

So, the first key difference to note is that the Lead-Safe Renovator Supervisor must be on site at all times that the Renovation Work is in progress. This means that until the cleaning verification process is complete, each project must have a Lead-Safe Renovator Supervisor at the premises.

More to follow...

Better Safe Than Sorry in Business

2010-07-11T00:35:00.002-04:00

I don't usually link to others' blog posts, but I thought this one is worth reading. As we say in law, you can pay me now, or pay me later, but it is usually much cheaper to anticipate issues and pay to prevent them.:

http://blog.reiserlegal.com/2010/07/loyalty-what-lebron-james-teaches-about-the-importance-of-smart-contracting/

Massachusetts Lead Law Takes Over

2010-07-09T18:55:00.003-04:00

Massachusetts just announced that it is taking over enforcement of the Lead Law 454 CMR 22, as of today. I know what I'll be reading this weekend! I am going to be posting about the differences between the MA law and the federal Renovation, Repair and Painting Rule. Here's the official state announcement:

Lead Renovation, Repair and Painting Rule (RRP Rule)
Effective July 9, 2010, the Division of Occupational Safety promulgated amendments to 454 CMR 22.00 (Deleading and Lead-Safe Renovation), and, in conjunction with the Executive Office for Administration and Finance, amendments to 801 CMR 4.02 454 (16) and (18) (Licensing Fees for Lead-Safe Renovation Contractors and Lead-Safe Renovator Training Providers). The amended version of 454 CMR 22.00 can be viewed by clicking HERE . The amendments to 801 CMR 4.02 454 (16) and (18) change the licensing fee and surcharges for Lead-Safe Renovation Contractors from $575 for a one-year license to $375 for a five-year license, and waive the $1,775 annual fee for Lead-Safe Renovator Training Providers if they are a State, federally recognized Indian Tribe, local government or non-profit organization.

These amendments, which establish safety standards for renovation, repair and painting work that disturbs lead paint in target housing and child-occupied facilities built before 1978, parallel similar federal EPA requirements that became effective on April 22, 2010 under the “Renovation, Repair and Painting Rule” (RRP Rule), 40 CFR 745.80-92. The amendments to 454 CMR 22.00 are designed to be as protective of human health and the environment as the federal standard. Effective July 9, 2010, DOS received authorization from EPA to administer and enforce the lead safety standards for renovation, repair and painting work set forth in 454 CMR 22.00, in lieu of the federal standard being enforced by EPA in Massachusetts.

View or print lead license applications by clicking HERE.

View RRP-related FREQUENTLY ASKED QUESTIONS by clicking HERE.

View or print one-page bulletin in PDF format:"Renovation, Repair and Painting (RRP) Regulations in Massachusetts: Information for Contractors"

Contractor Fined $784,380 for RRP Violation

2010-07-09T15:17:00.002-04:00

EPA Cites Company $784,380 for Failing to Warn Residents of Lead-Based Paint Exposures
Jun 20, 2010

The U.S. Environmental Protection Agency recently filed a complaint and proposed a $784,380 penalty against Hanson’s Window and Construction Inc. of Madison Heights, Mich., for violations of the 1998 federal rule for failure to warn residents of potential lead-based paint exposures.

EPA alleges that in May 2005, Hanson, a window installation firm, failed to provide home owners and tenants of 271 residential properties in Lansing, East Lansing, Haslett, Charlotte, Onondaga, Williamston, Holt, Stockbridge, Mason, Leslie, and Warren with required information warning residents that their construction activities could expose residents to lead. The citation is based in part on information that two children living in renovated Michigan homes had tested positive for elevated blood lead levels.

The Pre-Renovation Lead Information Rule requires that renovators provide homeowners, tenants, and owners of child-occupied facilities with the “Renovate Right” pamphlet and obtain written confirmation that they have received it. The purpose of the rule is to protect families during renovations in housing built before 1978.

http://ohsonline.com/articles/2010/06/20/epa-cites-company-784380-for-failing-to-warn-residents-of-lead-based-paint-exposures.aspx

Cash for Caulkers – The Definitive Guide To The Home Star Energy Retrofit Act of 2010-Part II

2010-07-02T12:00:00.000-04:00

We also decided to combine these retrofits into three packages that will help homeowners get the best bang for their buck. But first, let’s review the program details.

Who is Eligible and How to Qualify?
The Home Star bill offers two rebate programs, the “Silver Star” program and “Gold Star” program. Here are details for each:

· Silver Star – Unless another amount is specified in the “Rebate Amount” column above, homeowners will receive a $1,000 rebate for each retrofit listed in our table. The maximum amount of rebates paid out will be $3,000 or 50% of the total cost, whichever is lower. For example, if a homeowner spends a total of $4,000 on eligible retrofits, they will get $2,000 or 50% back as a rebate. If they spend $8,000 on eligible retrofits, they would only receive $3,000 in rebates instead of $4,000 (which would be 50% of the cost).

· Gold Star – To qualify for the Gold Star program, homeowners must reduce their total home energy consumption by 20%. A $3,000 rebate will be rewarded for this reduction. Homeowners can receive an additional $1,000 for each additional 5% reduction, up to a total rebate of $8,000 or 50% of the total retrofit cost. Rebates may be provided for any of the retrofits listed under the Silver Star program, or for any other energy-saving measure, including: home energy management systems, high-efficiency appliances, highly reflective roofing, awnings, canopies, and similar external fenestration (window) attachments, automatic boiler water temperature controllers, energy-efficient wood products, insulated vinyl siding, and mechanical air circulation and heat exchangers in a passive-solar home.

The Home Star bill also includes rebates for do-it-yourself (DIY) homeowners that are confident in taking on the renovations themselves. DIY’ers can get up to $250 in rebates for products purchased without installation service. This rebate is limited to attic insulation, crawl space insulation and/or air-sealing retrofits.

Seal Your House Envelope and Improve Insulation
Before carrying out any serious retrofit, homeowners need to weatherize and seal their house “envelope.” The envelope includes outer walls, windows, doors, floors and the ceiling. If the house is not properly sealed and insulated, then subsequent HVAC retrofits won’t be as effective.

Common Air Leaks

In some cases, savvy do-it-yourselfers may be able to handle these projects themselves. There are plenty of books and great online resources (e.g. ACEEE.org) that provide instructions. However, you should seriously consider hiring an auditor beforehand. Special diagnostics equipment will show where air is escaping and to what extent. For example, thermal imaging devices detect areas in walls that are poorly insulated and dispersing heat. This information would be unavailable without such devices.

So how much does it cost to seal all the air leaks in a home? Prices will obviously vary based on where you live, how big your property is and the scope of the retrofit. But it will likely cost a few thousand dollars to hire a contractor for this type of renovation. In this example from the New York Times, the author spent $3,760 for insulating and sealing the envelope of his 1,200 square foot home.

How much can homeowners expect to save? The Environmental Protection Agency (EPA) estimates that homeowners can save 20% on heating and cooling costs by sealing leaks and adding insulation. In New York – one of the most expensive places to heat a home with an average annual cost of $1,513 – this would be a yearly savings of $300 just for heating.

Continuing with the example from the New York Times, the Silver Star program would provide $1,880 (50%) in rebates for their retrofit. At an annual savings rate of $300, the renovation would pay for itself in six years (or less if you include cost savings from reduced air conditioning bills).

Repair and Replace Leaky Ducts
Ducts are notoriously leaky and inefficient. They are one of the usual suspects in a crime of high utility bills, or when rooms are difficult to heat and cool. The EPA calculates that 20% of air moving through ductwork is lost due to leaks, holes and poor connections. Other sources put estimates closer to 40%. So while suffering from “leaky ducts” may sound innocuous, it can have a big impact on the efficiency and costs of heating and cooling your home.

Fortunately, duct replacement and sealing is eligible for funding under the Home Star bill. Many homeowners will want to outsource this project to a qualified HVAC contractor. Contractors have equipment to detect leaks that otherwise may not be immediately visible. They also have methods to seal ducts that are inaccessible. For example, by spraying an adhesive or sealant through the duct work.

Replacing and sealing ducts can also be a DIY project, especially when ducts can be easily accessed in an attic or basement. Leaks should be sealed with mastic sealant or metal tape (not duct tape), then insulated to reduce heat loss and to further improve efficiency. The Lawrence Berkeley National Laboratory has an excellent guide on how to seal and insulate ducts.

Upgrade Your Furnace and Water Heater
Heating is the largest energy expense in homes, according to the American Council for an Energy-Efficient Economy (ACEEE). In colder parts of the country, it makes up 30 to 50% of annual energy bills. So improving the heating efficiency of your home will have the biggest impact on lowering your energy costs. Sealing air leaks is a good start, but replacing your heating system could provide real leverage towards cost savings.

If your furnace or boiler was purchased before 1990, then it is time to consider an upgrade. Modern furnaces are much more efficient than those that are older than 20 years. You can use rebates from the Home Star bill to replace your furnace, but you will need to meet their guidelines:

TYPE OF REPLACEMENT	REQUIREMENTS	REBATE AMOUNT
Replacement with a natural gas or propane furnace	The furnace must have an AFUE rating of 92 or greater; or an AFUE rating of 95 or greater. Must be installed in accordance with ANSI/ACCA Standard 5 QI-2007.	$750
Replacement with a natural gas or propane boiler	Boiler must have an AFUE rating of 90 or greater. Must be installed in accordance with ANSI/ACCA Standard 5 QI-2007.	$1,000
Replacement with an oil furnace	Furnace must have an AFUE rating of 86 or greater and use an electrically commutated blower motor. Must be installed in accordance with ANSI/ACCA Standard 5 QI-2007.	$1,000
Replacement with an oil boiler	Boiler must have an AFUE rating of 86 or greater and temperature reset or thermal purge controls. Must be installed in accordance with ANSI/ACCA Standard 5 QI-2007.	$1,000
Replacement with a wood or pellet furnace, boiler, or stove	The new system must meet at least 75 percent of the heating demands of the home; and in the case of a wood stove, but not a pellet stove, replace an existing wood stove, but not a pellet stove, and is certified by the Administrator of the EPA. The home must have a distribution system (such as ducts, vents, blowers, or affixed fans) that allows heat to reach all or most parts of the home. In the case where an old wood stove is being replaced, a voucher must be provided by the installer or other responsible party certifying that the old wood stove has been removed and rendered inoperable or recycled at an appropriate recycling facility. An accredited independent laboratory recognized by the Administrator of the EPA must certify that the new system has thermal efficiency (lower heating value) of at least 75 percent for wood and pellet stoves, and at least 80 percent for furnaces and boilers; and has particulate emissions of less than 3.0 grams per hour for stoves, and less than 0.32 lbs/mmBTU for outdoor furnaces and boilers.	$500 for a wood or pellet stove that has a heating capacity of at least 28,000 Btu per hour. $1,000 if it provides 75% of the heating demands of the home.

Water heaters are typically the second largest energy users after home heating and cooling systems. Replacing convention oil-fired water heaters with high-efficiency gas or electric heaters can save homeowners thousands of dollars over a 10 to 15 year period. The Home Star bill includes a variety of replacement options eligible for rebates.

REPLACEMENT OPTIONS	REBATE AMOUNT
Replace with a natural gas or propane condensing storage water heater with an energy factor of 0.80 or more, or a natural gas or propane storage or tankless water heater with thermal efficiency of 90 percent or more.	$1,000
Replace with a tankless natural gas or propane water heater with an energy factor of at least 0.82.	$750
Replace with a natural gas or propane storage water heater with an energy factor of at least 0.67.	$400
Replace with an indirect water heater with an insulated storage tank that has a storage capacity of at least 30 gallons and is insulated to at least R–16; and is installed in conjunction with a qualifying boiler described in the previous table.	$1,000
Replace with an electric water heater with an energy factor of 2.0 or more.	$1,000
Replace with an electric tankless water heater with an energy factor or thermal efficiency, as applicable, of .96 or more or a thermal efficiency of 96 percent or more, that operates on not greater than 25 kilowatts.	$250 each for a maximum of 4 electric tankless water heaters
Replace with a solar hot water system that is certified by the Solar Rating and Certification Corporation or that meets technical standards established by the State of Hawaii.	$1,000
Replace with a water heater installed in conjunction with a qualifying geothermal heat pump - as described in our first table - that provides domestic water heating through the use of a desuperheater or year-round demand water heating capability.	$500 for a desuperheater

Ground Source Heat Pump

An alternative to furnaces and boilers are ground source heat pumps (GSHPs). Also known as geothermal heat pumps, GSHPs are one of the most efficient systems for heating and cooling buildings. According to the International Ground Source Heat Pump Association, GSHPs are 50 to 70% more efficient than other heating systems, and 20 to 40% more efficient than traditional air conditioners. They can also be used as an alternative water-heating system and save up to 50% on water-heating bills.

Ground source heat pumps are more economical than using oil or air-source heat pumps, but there is still a lot of debate over GSHPs versus natural gas. Homeowners will need carry out their own due diligence beforehand. For starters, here is an academic report that compares the two options.

Year over year, a ground source heat pump is more cost effective than natural gas. It’s the initial cost that really drives down the return on investment (ROI) and makes natural gas a more attractive option. However, there are several rebates and tax credits available that help subsidize the upfront cost.

Additional Financing Resources
With other legislation in the queue, it might take weeks or months to hear the Senate’s final decision on the Home Star bill. In the meantime, homeowners can receive funding from other sources to pay for green renovations. The federal government, state governments, local municipalities and even utility companies offer several options.

For example, homeowners can still receive a federal tax credit for 30% of the cost of energy-efficient products (up to a total credit of $1,500). This includes the purchase of central air conditioning systems (both the product and installation), electric heat pumps, furnaces and boilers, and whole-house ventilation fans. Visit the US Department of Energy Energy Savers website for more information.

Another great resource is the Database of State Incentives for Renewables and Efficiency or “DSIRE” website. This allows you to view rebates, loan and grant programs, financing options and tax credits offered in your region.

Finally, new home buyers should consider an energy-efficient mortgage or energy improvement mortgage. These mortgages allow consumers to count savings from energy bills as additional income, ultimately giving them more buying power. Home Energy Magazine has a helpful article here.

Cash for Caulkers – The Definitive Guide To The Home Star Energy Retrofit Act of 2010

2010-07-01T23:21:00.002-04:00

This article, by Houston Neal of Software Advice, demystifies the rebates that will be available for green retrofits. I will post the second part tomorrow::

“Cash for Caulkers” is nearly here. Last month the House of Representatives passed H.R. 5019 – also known as the Home Star Energy Retrofit Act of 2010 or “Cash for Caulkers” – to kick-start construction, create jobs and cut back carbon emissions. While the bill still needs to clear the Senate, supporters predict it will pass this summer.

This is great news for homeowners and contractors alike. The bill provisions $6 billion for energy-efficient or “green” retrofits. It is expected to fund renovations for 3 million families, create 168,000 new jobs and save consumers $9.2 billion on energy bills over the next 10 years.

But in order to cash in on upcoming rebates, homeowners and contractors will need to do their homework. There are 13 types of retrofits eligible for funding. Each retrofit has unique eligibility requirements and set rebate amounts. You can read the full text here.

We made it really easy to wade through the legalese. Below is a table that breaks down the 13 retrofits of the bill, along with the requirements and rebate amount for each. In addition to the requirements we listed, each retrofit must comply with Building Performance Institute (BPI) standards or other procedures to be approved by the Secretary of Energy.

RETROFIT	REQUIREMENTS	REBATE AMOUNT
Air sealing	Rebate covers both interior and exterior sealing and includes use of the following products: sealants, caulks, insulating foams, gaskets, weather-stripping, mastics, and other building materials.	$1,500
Attic insulation	Must meet the attic portions of the Department of Energy (DOE) or Environmental Protection Agency (EPA) thermal bypass checklist. You must add at least R–19 insulation to existing insulation, and it must result in at least R–38 insulation in DOE climate zones 1 through 4 and at least R–49 insulation in DOE climate zones 5 through 8. Finally, it must cover at least 100 percent of an accessible attic or 75 percent of the total conditioned footprint of the house.	$1,000
Duct replacement and sealing	Sealing must be installed in accordance with BPI standards or other procedures approved by the Secretary of Energy. For duct replacement, you must replace and seal at least 50 percent of a distribution system of the home.	$1,000
Wall insulation	Insulation must be installed to full-stud thickness or add at least R–10 of continuous insulation. It must covers at least 75 percent of the total external wall area of the home.	$1,500
Crawl space or basement insulation	Insulation must cover at least 500 square feet of crawl space or basement wall and add at least R–19 of cavity insulation or R–15 of continuous insulation to existing crawl space insulation; or R–13 of cavity insulation or R–10 of continuous insulation to basement walls. For rim joist insulation, you must fully cover the rim joist with at least R–10 of new continuous or R–13 of cavity insulation.	$250 for rim joist insulation
Window replacement	Must replace at least 8 exterior windows, or 75 percent of the exterior windows in a home, whichever is less, with windows that are certified by the National Fenestration Rating Council. Must comply with criteria applicable to windows under section 25(c) of the Internal Revenue Code of 1986 or, in areas above 5,000 feet elevation, have a U-factor of at least 0.35 when replacing windows that are single-glazed or double-glazed with an internal air space of 1/4 inch or less.	$1,000
Door or skylight replacement	Must replace at least 1 exterior door or skylight with doors or skylights that comply with the 2010 Energy Star specification for doors or skylights.	$125 per door or skylight with a limit of 2 doors and 2 skylights
Heating system replacement	See second table below	$1,000
Air-source air conditioner or heat pump installation	Must be installed in accordance with ANSI/ACCA Standard 5 QI–2007. The air-source air conditioner must meet or exceed SEER 16 and EER 13; or SEER 18 and EER 15. The air-source heat pump must meet or exceed SEER 15, EER 12.5, and HSPF 8.5.	$1,500
Geothermal heat pump installation	Must be an Energy Star qualified geothermal heat pump that meets Tier 2 efficiency requirements and that is installed in accordance with ANSI/ACCA Standard 5 QI–2007.	$1,000
Water heater replacement	See third table below	$1,000
Storm windows or doors installation	Must be installed on at least 5 existing doors or existing single-glazed windows. Must comply with any procedures that the Secretary of Energy may set for storm windows or doors and their installation.	$50 for each window or door with a minimum of 5 windows or doors and a maximum of 12
Window film installation	Window film that is installed on at least 8 exterior windows, doors, or skylights, or 75 percent of the total exterior square footage of glass in a home, whichever is more, with window films that are certified by the National Fenestration Rating Council. Must have a solar heat gain coefficient of 0.43 or less with a visible light-to-solar heat gain coefficient of at least 1.1 for installations in 2009 International Energy Conservation Code climate zones 1–3; or a solar heat gain coefficient of 0.43 or less with a visible light light-to-solar heat gain coefficient of at least 1.1 and a U-factor of 0.40 or less as installed in 2009 International Energy Conservation Code climate zones 4–8.	$500

Houston Neal
Director of Marketing
Software Advice
www.softwareadvice.com

Massachusetts Takes Final Steps to Enact Its Own Deleading and Lead-Safe Renovation Law

2010-06-26T12:50:00.000-04:00

It has finally happened! Massachusetts has taken the final steps to enact its own lead-based paint law for contractors who perform home renovation. They will be moving to self-certify with the EPA to take over enforcement of the law shortly. The MA law will take effect on July 9, 2010. The goal is for MA to be authorized to enforce the law on that date as well. What does that mean for home improvement contractors?

I will be reading the final version of the law this weekend and will blog about it shortly. My job is to understand the law and explain it to you, the public, in order to protect you. More to come...

Lead-Based Paint RRP Rule-Update-EPA Delays Fine

2010-06-19T17:13:00.000-04:00

Word came from the Environmental Protection Agency that the EPA will not be enforcing the certification requirement until October 1, 2010. What does this mean for contractors? You still need to follow the lead-safe practices, hand out the Lead-Safe booklet, etc. Contractors will have to be enrolled in a certified renovator class by September 30, 2010, and must have completed the training by December 31, 2010.

Here is the link to the memorandum:

http://www.dealer.org/files/EPA_Delay_Announcement_6_18_10.pdf

This memorandum was sent in recognition of the fact that contractors have had difficulty finding open slots in the training classes. That said, contractor still need to be familiar with the rule and continue to follow the correct procedures when disturbing lead paint in pre-1978 homes.

Seminar: How to Work As a Home Contractor and Stay Out of Trouble

2010-06-07T11:49:00.001-04:00

Seminar: How To Work As A Home Contractor And Stay Out Of Trouble

Thursday, June 24, 2010 from 4:30-6:30 p.m.

305 Walnut Street, 2nd Floor, Newton, MA

(inside the Citizens Bank building)

$15.00 per person

As a building industry professional, I am offering a seminar to inform contractors and construction companies about changes to the Renovation Repair & Painting Program Rule and how to stay in compliance with the Home Improvement Contractor Law. The seminar will take place at my office at 305 Walnut Street in Newton on Thursday, June 24, 2010 from 4:30-6:30 p.m. Light refreshments will be served.

I will discuss:

* What You Need To Know About Changes to the Lead Paint Law

* Compliance with the Home Improvement Contractor Law

* How to Protect Your Company

Please RSVP to ajg@andreagoldmanlaw.com to let me know if you will be attending. Payment will be $15.00 at the door.

Sincerely,

Andrea Goldman

Make Sure You are Protected.

I Can Help.

The new Lead-Based Paint Renovation, Repair and Painting Program Rule went into effect on April 22, 2010. The law is continuing to change.

Are you protected?

Contractors need to protect themselves by adding clauses to their contracts with homeowners and maintaining good contracts with subcontractors.

Contractor agreements for renovation projects must also comply with the State Home Improvement Contractor Law and include additional provisions that protect you and your company.

How I can help:

I have developed contract clauses that take all applicable laws into account.

* I will insert the Lead Paint provisions into your homeowner and subcontractor contracts, and review these contracts for compliance with state and federal law.

* I will make recommendations for improvements and additions to your contract and quote a flat fee for these updates.

* I can also provide pricing for developing new home contractor/homeowner, general contractor/subcontractor and other construction contracts.

One Time Fee: $495 (lead paint clauses only)

Email me today: ajg@andreagoldmanlaw.com

Call me directly: (617) 467-3072

About My Law Firm

The Law Office of Andrea Goldman represents clients in the following areas of practice:

Construction Litigation

Mechanic's Liens

Representation of Construction Companies

Home Contractor/Homeowner Disputes

Business Disputes

Real Estate Conflicts

Alternative Dispute Resolution

Law Office Of Andrea Goldman

(617) 467-3072

Newton, Massachusetts 02460

www.AndreaGoldmanLaw.com

"Massachusetts Builders Blog"

www.buildingconfidence-llc.blogspot.com

"Home Contractor vs. Homeowner Blog"

www.andreagoldmanlaw.blogspot.com

Seminar on the RRP Rule from the Lead and Environmental Hazards Association

2010-06-03T23:59:00.001-04:00

LEHA is offering the following workshop on June 22 for $85.00. Go to www.rrprule.com to register. I will be there in the afternoon. I am holding a seminar at my office on June 24 called , "How to Work as a Home Contractor and Stay Out of Trouble" that will cover the RRP Rule as well.H

Rule the Rule! Don't Let "it" Rule You!

A Series of One-Day Regional Workshops on the EPA Renovation, Repair and Painting (RRP) Rule for Local and State Public Agencies, Lead Industry Companies, RRP Training Organizations, Community Organizations and RRP Certified Contractors.

Sponsored by the Lead and Environmental Hazards Association (LEHA), the workshops will provide you with the opportunity to hear from experts in the lead poisoning prevention and hazard control fields; to network and share information with colleagues from throughout the region; to resolve operating problems; and, to clarify confusing elements of the Rule.
The EPA RRP Rule represents the most significant and far-reaching Federal lead regulation since HUD published the Lead-Safe Housing Rule over 10 years ago. How to properly implement the various components of the rule has created many issues and concerns among public agencies, community groups, contractors and property owners.

Workshop Agenda

| |

Sign-in 8am-9am

Program 9am-4pm

Learn about Best Practices!
Get Answers to Your Questions!
Examine Pending Changes to the Rule!

The Workshops

The six regionally-based workshops being presented this summer will bring clarity to the Rule, untangle differences between EPA and HUD work protocols and clearance requirements, and help with the proper implement and enforcement of the Rule.
The Workshops will examine the current status and pending changes to the rule, state adaptations of the rule, enforcement and capacity building strategies, liability and insurance issues, and compliance with the Rule’s work requirements and protocols.

Workshop Agenda (9am-4pm)
Update of the Rule

Q&A session on current status (EPA Officials Invited)

State Reports

How the states in the Region are handling the Rule
What are the differences between the federal rule and state adaptations
What reciprocity is there among the states in the Region
Q&A

Changes to the Rule (working lunch)

What changes are currently in effect
What changes are anticipated in the coming months and years
Q&A

Capacity Issues

What is the ratio in each state between trainers and contractors that need training
What more can be done to develop training capacities
Q&A

Strategies for Promoting and Enforcing the Rule

Best practices: What has been done to promote the rule to contractors and property owners
What is EPA doing to enforce the Rule
What can be done by state and local agencies and community organizations to enforce the Rule, including integration with permitting and code enforcement, and integration with existing contractor licensing programs
Q&A

Clarifying Technical Aspects of the Rule: An Open Q&A Session

Problem areas
Inconsistencies with State and Federal lead safe work practices
Liabilities and insurance Issues

Workshop Participants
Invited speakers include Regional EPA officials; state regulators; national and local lead poisoning prevention and lead hazard control organizations; lead inspection, risk assessment and remediation industry leaders; and, representatives from contracting companies, laboratories and training organizations.

Schedule and Locations

| |

Workshop Schedule and Locations

If you are making room reservations, be sure to mention that you are attending the “RRP Workshop” to receive the rates listed below.

Sign-in 8am-9am

Program 9am-4pm

Marlborough, MA

The Region 1 Workshop will be held on June 22, 2010 at the Holiday Inn Hotel & Suites, Marlborough, MA. Room rates of $95 single/double are available up to June 7, 2010. Phone: 508.481.3000. The hotel is located at 265 Lakeside Avenue, Marlborough, MA 01752. Parking is complimentary.
[Get Directions]

The Massachusetts Lead Paint Law Hearing-Audience Commentary

2010-05-26T22:49:00.000-04:00

The testimony at the hearing conducted by the Division of Occupational Safety raised a lot of important issues and suggestions for the Massachusetts Lead Law. Commentary included the following:

1. Create a forum for dialogue where contractors can ask questions without fear of reprisal.
2. How does a contractor handle a conflict between OSHA and the RRP Rule?
3. Provide a means for looking up lead-paint certification online.
4. How will liability be allocated between subcontractors and contractors?
5. Why hasn't the huge rental-housing community been targeted?
6. Is power-washing allowed under the MA law?
7. It is important to allow access and training for apprentices and students under the age of 18.
8. MA should lobby with insurance companies to include lead coverage in their policies.
9. A task force of trade professionals should be created to address lead and other issues.
10. This law is overly onerous for the small contractor.
11. Contractors should not be put in the position where they are the ones educating homeowners about this law.
12. Those with high lead levels should have to present their claims to a tribunal before filing suit. If the contractor can show that he followed the lead-safe practices, then the suit should not be allowed to go forward.
13. Most were in favor of Massachusetts taking over administration of the law. Having the MA law in effect would prevent suits from being filed in federal court and would keep adjudication of construction and lead claims in Massachusetts courts.
14. Finally, homeowners and contractors alike should be held accountable for trying to circumvent the law.

The Lead-Based Paint Renovation, Repair and Painting Program Law-A Letter to Homeowners

2010-05-25T21:36:00.002-04:00

Homeowners who are considering doing a renovation must know that if their homes were built prior to 1978, their contractors are required to follow certain procedures if they are going to disturb more than 6 interior square feet of paint or 20 exterior square feet of paint. This law requires that the general contractor must become certified with the Environmental Protection Agency (EPA), and that the contractor himself take an eight-hour class in order to become a certified renovator and learn lead-safe practices that contain lead dust.

Although the EPA claims that it will be doing a publicity campaign to inform homeowners about the Renovation, Repair and Painting Rule (RRP Rule), I have heard very little about it outside of construction circles. So, I feel that it is important for me as a construction lawyer to educate the public about this rule.

First of all, the preparation and education needed to comply with the law are going to cost the contractors more money. This will be reflected in an increase in the cost of jobs. The contractors must pay at least $300.00 to certify with the EPA, $200-$300 on average for the certified renovator training, the costs of training their workers and/or subcontractors, and additional costs for materials (plastic, protective suiting, masks, duct tape) and very expensive HEPA vacuums.

Homeowners who ask contractors to circumvent these practices and operate in violation of the law are doing these contractors an extreme disservice. This law is in place to protect homeowners and their families (and more particularly, pregnant women and children under six) and the contractors from potentially toxic lead dust. Lead poisoning is a real problem with potentially tragic results, and following the lead-safe practices has been shown to significantly reduce the exposure to lead for all involved.

Please understand that your contractor is doing the right thing by giving you a lead-paint brochure and following the rules. He could also face significant fines ($37,500.00 per infraction, per day) for failing to comply with this law. So, please do not blame the messenger. Respect your contractor and do not ask him to break the law.

Hearing with the Division of Occupational Safety about Massachusetts taking over the RRP Rule

2010-05-24T23:41:00.000-04:00

The Massachusetts Division of Occupational Safety held a Public Hearing today to take comments on new regulations related to their intent to seek authority in administering and enforcement of the EPA RRP program from the EPA here in Massachusetts. I was there, along with the Presidents of NARI and the Homebuilders Association of (Western) Massachusetts, Sean McCadden (whose blog I mention frequently), contractors, lead testers and others.

The conversation was thoughtful and informative. I will report about it over a couple of posts. First of all, Massachusetts has published emergency regulations to the Central Register that will hopefully become a permanent law within the next few months. The public was invited to make comments and suggestions regarding changes to the law.

The state is also evaluating whether it will self-certify with the EPA and take over administering the law. There were about twenty-five people present, and most seemed supportive of the notion that Massachusetts should take over administration of the lead law.

Speakers commented on the current difficulties facing contractors who are forced to educate homeowners about the RRP Rule. They are concerned about the fact that there is an "underground" population of contractors who are willing to circumvent the rule and charge less money because they offer prices that do not include the lead containment procedures. In addition, these contractors have not incurred the additional costs involved in certifying their companies and firms with the EPA and becoming certified contractors.

The audience complimented MA on having drafted a well thought-out law that is much clearer than the RRP rule. The biggest concerns were enforcement and education. The need for enforcement was emphasized so that the "good" contractors would not be penalized for following the rules by being outbid by "illegal" contractors. If enough contractors are fined for not following the practices and becoming certified, then this would hopefully serve as a deterrent.

The need for education is apparent because the lack of publicity regarding the implementation of the rule has resulted in homeowners having no idea that the lead containment procedures are required, and the contractors are faced with educating the homeowners as well as having to charge more for their services. Homeowners are already asking contractors for an alternative price without the lead-safe practices, which creates unsafe conditions for both the contractors and the homeowners and their families.

These were some of the issues raised at the hearing today.

The RRP Rule in Plain English

2010-05-19T09:53:00.000-04:00

The Lead-based Paint, Renovation, Repair and Painting Rule is causing contractors to panic. It seems as though every time we get a handle on what is required, there is a new or proposed change in the law. In Massachusetts it is particularly confusing because the state has published its own emergency regulations to the Central Register which could become law ninety days from April 16th. If the state law is approved by the Environmental Protection Agency, then the Division of Occupational Safety will take over administering the State law, and contractors will have to learn a new set of rules that will be as strict or stricter than the current rule.

In addition, the Opt-Out is now expiring as of July 6, 2010, and there is a new notification requirement that goes into effect on that day as well. Contractors will now be required to submit their lead documentation to the homeowner within thirty (30) days of completing the renovation, or upon final invoice. The EPA's Sample Recordkeeping Checklist will suffice for that purpose: http://www.epa.gov/lead/pubs/samplechecklist.pdf.

Since the MA rules have been published, it is highly likely that they will go into effect in the middle of July. There is a public hearing on the new rules on May 24, 2010, and I plan to attend. If you have opinions regarding the new law, you should go as well.

In accordance with M.G.L. c. 30A, § 2, the Massachusetts Division of Occupational Safety will hold a Public Hearing to receive comments on proposed amendments to its deleading regulation, 454 CMR 22.00, which include new provisions for renovation, repair and painting work conducted in target housing and child-occupied facilities, and to 801 CMR 4.02 with regard to licensing fees charged to Lead-Safe Renovation Contractors and providers of Lead-Safe Renovator-Supervisor training. The proposed regulations are authorized by M.G.L. c. 111, §§ 189A through 199B and M.G.L. c. 149, § 6 for 454 CMR 22.00; and M.G.L. c. 7, § 3B and M.G.L. c. 111, § 197B(e) for 801 CMR 4.02 454 (16) and (18). A hearing will be held on Monday May 24, 2010, from 10:00 a.m to 1:00 p.m. in the South Street Amphitheater of the UMass Medical School at 333 South Street, Shrewsbury, MA

If you see me there, please come say hello!

Notification Requirements as of July 6, 2010

2010-05-12T09:00:00.000-04:00

When the final invoice for the renovation is delivered or within 30 days of the completion of the renovation, whichever is earlier, the renovation firm must provide information pertaining to compliance with this subpart to the following persons: (i) The owner of the building; and, if different, (ii) An adult occupant of the residential dwelling, if the renovation took place within a residential dwelling, or an adult representative of the child-occupied facility, if the renovation took place within a child-occupied facility. (2) When performing renovations in common areas of multi-unit target housing, renovation firms must post the information required by this subpart or instructions on how interested occupants can obtain a copy of this information. This information must be posted in areas where it is likely to be seen by the occupants of all of the affected units. (3) The information required to be provided by paragraph (c) of this section may be provided by completing the sample form titled ``Sample Renovation Recordkeeping Checklist'' or a similar form containing the test kit information required by Sec. 745.86(b) (1) (ii) and the training and work practice compliance information required by Sec. 745.86(b) (6). (d) If dust clearance sampling is performed in lieu of cleaning verification as permitted by Sec. 745.85(c), the renovation firm must provide, when the final invoice for the renovation is delivered or within 30 days of the completion of the renovation, whichever is earlier, a copy of the dust sampling report to: (1) The owner of the building; and, if different, (2) An adult occupant of the residential dwelling, if the renovation took place within a residential dwelling, or an adult representative of the child-occupied facility, if the renovation took place within a child-occupied facility. (3) When performing renovations in common areas of multi-unit target housing, renovation firms must post these dust sampling reports or information on how interested occupants of the housing being renovated can obtain a copy of the report. This information must be posted in areas where they are likely to be seen by the occupants of all of the affected units.

Notification Rule If Dust Wipe Test is Performed-From the EPA

2010-05-11T23:04:00.001-04:00

As of July 6, 2010, final rule requires that, if dust clearance is performed in lieu of cleaning verification, the renovation firm provide a copy of the dust wipe sampling report(s) to the owner of the building that was renovated as well as to the occupants, if different. With respect to renovations in common areas of target housing or in child- occupied facilities, EPA is also requiring that these records be made available to the tenants of the affected housing units or the parents and guardians of children under age 6 using the child-occupied facilities. Dust sampling reports may be made available to these groups in the same way as training and work practice records, by providing information on how to review or obtain copies in individual notifications or on posted signs.

New RRP Amendment Requires Providing Documentation to Homeowners and/or Occupants

2010-05-08T12:53:00.001-04:00

This final rule requires that, when the final invoice for the renovation is delivered, or within 30 days of the completion of the renovation, whichever is earlier, the renovation firm must provide information demonstrating compliance with the training and work practice requirements of the RRP rule to the owner of the building being renovated and, if different, to the occupants of the renovated housing or the operator of the child-occupied facility. The Sample Renovation Checklist, http://www.epa.gov/lead/pubs/samplechecklist.pdf can be used for this purpose.

For renovations in common areas of target housing, the renovation firm must provide the occupants of the affected housing units instructions on how to review or obtain this information from the renovation firm at no charge to the occupant. These instructions must be included in the notice provided to each affected unit under 40 CFR 745.84((2(i) or on the signs posted in the common areas under 40 CFR 745.84(b)(2)(ii).

Under this final rule, the renovation firm is required to provide interested parents or guardians of children using the child-occupied facility instructions on how to review or obtain a copy of these records at no cost to the parents or guardians. This could be accomplished by mailing or hand delivering these instructions, or by including them on the signs posted under 40 CFR 745.84(c)(2)(ii).

New Documentation Requirements for Contractors

2010-04-27T20:41:00.003-04:00

The RRP Rule is changing so frequently that it must be staggering for contractors. A new regulation is being published to the Federal Register that will take affect 60 days after publication. Shawn McCadden has the full text of the rule here:

http://www.shawnmccadden.com/rrpedia/bid/39210/What-EPA-RRP-documentation-must-be-given-to-the-owner-or-occupant#Comments

Basically, as of the date of the final invoice, or no later than 30 days after the completion of the renovation, the contractor must present the owner and/or occupants with documentation of the lead safe practices. The EPA has a Sample Renovation Recordkeeping Checklist that can be used for this purpose. In addition, if dust clearance testing is performed, then the owner and/or occupants must be presented with the dust wipe sampling report. I will report on this more once I become more familiar with this new amendment. I will also be drafting additional contract clauses to address this new rule.

Shawn's blog spells it out in detail, and his reporting is extremely comprehensive.

Opting-Out of the Lead Paint Law is not an Option

2010-04-26T19:33:00.002-04:00

Today I had a spirited debate on a NARI listserve about the Opt-Out provision of the RRP Rule. As others pointed out, the Opt-Out provision will be in effect for sixty days. As the EPA stated on its website:

"Q. Will EPA issue a final rule removing the opt-out and if it does when will the rule become effective?

As of April 22, 2010, EPA has issued a rule revoking the opt-out provision of the 2008 Lead RRP rule. EPA expects this rule to publish in the Federal Register within 2 weeks and anticipates that it will take effect 60 days after publication."

So, here is the reality of the situation. If you are going to do a renovation that will be completed before 60 days from now, I suppose you could theoretically have a homeowner who does not have children under 6 or pregnant women at the premises sign an opt-out clause and avoid using the lead-safe practices. However, what if the project runs over? Does it make sense to have a job going on where the procedures have not been followed and run the risk of being sued for lead poisoning?

There is a campaign starting to make homeowners more aware of the RRP rule now that it is in effect. People are going to worry more about lead poisoning and people will be inclined to have their blood tested for lead. If you are sued for lead poisoning, you will have to hire a lawyer and defend yourself and/or your company. The situation will be that much more murky if you start using the lead-safe practices 60 days from publication of the law revoking the Opt-Out.

I am going to take a stand and suggest that all firms should follow the lead safe practices no matter what. Better safe than sorry.

Lead-Based Paint Renovation, Repair and Painting Law-Myth Busters

2010-04-22T00:31:00.000-04:00

There is so much misinformation floating around about the law that is going into effect today; it is no wonder that contractors are confused. I will try to address some of the confusion that exists here in Massachusetts.

1. As of today, the Environmental Protection Agency is enforcing the lead paint law in Massachusetts. There is no grace period.

2. The opt-out provision for homes where there are no children under 6 or pregnant women is supposed to expire. That means there is no opt-out available for pre-1978 homes.

3. The state has published an emergency regulation to the central register as 454 CMR 22.00. The law went into effect on April 2nd, but the Division of Occupational Safety has not yet received approval from the EPA to take over enforcement and have the MA law supersede the federal law. The EPA requirement is that the MA law has to be at least as stringent as the federal law.

4. An emergency regulation expires 90 days after filing. (i.e. 90 days from April 2^nd in this case.) Emergency regulations expire unless a public hearing is held and then the regulation is adopted prior to the 90 days.

So, as of now, contractors must comply with the EPA Rule. If, and when Massachusetts law takes over, I will inform my readers.

You can also learn more at http://www.shawnmccadden.com/rrpedia/

The Lead-Based Paint Renovation, Repair and Painting Law Goes Into Effect Today!

2010-04-22T00:01:00.000-04:00

Apply for certification with the EPA now. If you are not certified as of April 22, 2010, you cannot do work that disturbs lead paint in target housing.
Contractors cannot contract away liability from enforcement by the EPA. You cannot shield yourself from liability. All contractors and subcontractors are responsible for following the Lead-Based Paint Renovation, Repair and Painting containment procedures.

It is April 22, 2010, and the Lead Paint Law goes into effect today. If your firm has not received certification from the EPA, you cannot do work that disturbs more than 6 interior sq. ft. or 20 exterior sq. ft. of paint on pre-1978 housing. What should you do?

1. Apply for certification today at the EPA website, and stay tuned. If your application is pending there may be announcements that allow for work until certification is granted. However, as of now, you may not do work that disturbs paint!

2. Have the homeowner agree to test for lead. If lead is not found in the home, you do not have to use the lead-safe practices. Make sure the lead testing firm agrees to indemnify and defend you if you are sued. If lead is found, ask the homeowner to agree to pay for abatement before you start work.

3. Do not work on renovation projects on pre-1978 homes until you receive your certification.

4. Have a certified firm GC the project, and receive on the job training for the lead-safe procedures. If you are a certified renovator, use the lead-safe practices and document everything you do. Understand that you cannot GC the project unless you have received your certification from the EPA.

That's all I can think of for now. Remember, the fines are currently $37,500.00 per day per infraction. Do not take risks when it comes to compliance with this law.

For excellent information on the Lead-Based Paint Renovation, Repair and Painting Rule, you can also read Shawn McCadden's blog: http://www.shawnmccadden.com/

Contracts with Subcontractors-Lead-Based Paint Renovation, Repair and Painting Law

2010-03-28T09:00:00.001-04:00

Make sure you have written contracts with subcontractors.
Include an indemnification clause where the subcontractor is liable for his portion of the work that requires lead containment procedures. If the general contractor is sued, he wants to require that the subcontractor has to reimburse him for his attorney’s fees and costs in defending himself against a suit that is based on the work performed by the subcontractor. The subcontractor would agree to be liable for any judgment that is a result of the work that he performed.
The contract must clearly spell out the subcontractor’s scope of the work so everyone understands the apportionment of responsibility.
Never hire subcontractors who are not certified firms and renovators with the EPA.
Make final payment to subcontractors contingent upon completion of all documentation (including photographs and records of on the job training) required by the EPA.

Contract Provisions for the Lead Paint Law

2010-03-24T10:50:00.000-04:00

Once a firm is certified and it has trained its workers, it has taken almost all of the necessary steps to stay in compliance with the Lead-Based Paint Renovation, Repair and Painting Program Rule. A contractor should try to protect himself as much as possible from potential claims against him for lead paint injury. One way to protect oneself is by inserting clauses into contracts that address the lead paint law. With homeowners, the contractor will want the homeowner to acknowledge he has received the information booklet, that the firm has shown the homeowner its certification, inquired whether there are children under six or pregnant women at the premises, and whether any children in the house have tested positive for high lead levels. General contractors will want indemnification clauses where there subs will pay for the costs of defense for any claims brought as a result of the subcontractor’s work. They should also make payment contingent upon following the lead containment procedures and maintaining proper documentation. Contractors are advised to consult with their insurance provider to determine whether they should purchase pollution insurance.

The EPA has quite a bit of helpful information on its website:

http://www.epa.gov/lead/pubs/renovation.htm

Lead Paint Training

2010-03-22T09:00:00.000-04:00

The actual training is being offered by a number of different trainers that have been certified by the EPA. One can find a list of certified trainers by going to the EPA’s website. The cost of the training ranges from approximately $100-300.00. The training consists of an eight-hour training with a test at the end. It teaches the lead containment procedures (sealing off the room with plastic, using a HEPA vacuum to clean up at the end of the day, etc.) as well as how to coordinate the work most effectively and maintain proper documentation. Those who are grandfathered in from a previous lead training will have to do a four hour-training.

Becoming a Certified Renovator Under the Lead Paint Law

2010-03-20T10:00:00.000-04:00

What is involved in becoming a certified renovator? The certified renovator is responsible for seeing that the containment procedures are followed. He or she has to be on site at three stages of the project: when signs are posted, when the work-area containment is being established and when the post-renovation cleaning verification (dust wipe test) is performed. The certified renovator must be reachable by cell phone at all other times. In addition, anyone who works at the site who will be disturbing lead paint must receive on the job training (OJT) for their particular duty that is compliant with the requirements of the rule. The certified firm will need to be prepared to demonstrate the type of training that the workers have received for their particular task.

Contracts with Homeowners-The Lead-Based Paint Renovation, Repair and Painting Law

2010-03-19T09:00:00.000-04:00

Provide homeowners with a checklist that verifies that they have received the Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools pamphlet, they have seen the contractor’s firm and renovator certification, and they understand that the certified renovator will be on site when signs are posted, when the work-area containment is being established and when the post-renovation cleaning verification (dust wipe test) is performed. The certified renovator will be reachable by cell phone at other times. Consider whether to give your cell phone number to the homeowner.
Let homeowners know that any requests for testing, abatement, or third-party cleaning verification will result in a written change order that that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
Inform homeowners that any conditions that affect containment procedures (high winds, prior lead dust and paint chips at the site) will result in a written change order that is signed by the parties that will reflect an increase in the contract price and a change in the date of completion.
Even if homeowners say that no children under 6 or pregnant women are present in the home, or the home was built after 1978, the contractor should exercise due diligence and check records at the Registry of Deeds or the town tax assessor’s office to verify the date of construction. They should also make a reasonable inquiry regarding visitors, ages of children living outside the home who visit frequently and may be pregnant, etc.
Remove “broom clean condition” clauses from your contract.

The Lead-Based Paint Renovation, Repair and Painting Program Law-Legal Issues to Consider

2010-03-18T23:07:00.000-04:00

Apply for certification with the EPA now. If you are not certified as of April 22, 2010, you cannot do work that disturbs lead paint in target housing.
Contractors cannot contract away liability from enforcement by the EPA. You cannot shield yourself from liability. All contractors and subcontractors are responsible for following the Lead-Based Paint Renovation, Repair and Painting containment procedures.
The Lead-Based Paint Renovation, Repair and Painting Program Law is a federal law. That means that claims brought under that law can be brought in federal court.
Even if you have an arbitration clause in your contract, it will not apply to a lead paint claim because the plaintiff would be the child or a pregnant woman who is not necessarily a party to the contract. Therefore contractors could be subject two legal proceedings at the same time.

Under the Lead Paint Rule, Certain Activities are Prohibited

2010-03-17T09:00:00.000-04:00

Contractors should also be aware that there are activities which are absolutely prohibited. They are as follows:

The final rule prohibits or restricts the use of certain work practices during regulated renovations. These practices are open flame burning or torching of lead-based paint; the use of machines that remove lead-based paint through high speed operation such as sanding, grinding, power planing, needle gun, abrasive blasting, or sandblasting, unless such machines are used with HEPA exhaust control; and operating a heat gun above 1100 degrees Fahrenheit. These are essentially the same practices as are currently prohibited or restricted under the Lead-based Paint Activities Regulations, 40 CFR 745.227(e)(6), with the exception of dry hand scraping of lead-based paint. While this final rule and EPA’s Lead-Based Paint Activities Regulations do not prohibit or restrict the use of volatile paint strippers or other hazardous substances to remove paint, the use of these substances are prohibited for use in poorly ventilated areas by HUD’s Lead Safe Housing Rule and they are regulated by OSHA.

Opting-Out of the Lead Paint Law is not an Option for Homeowners

2010-03-16T09:00:00.000-04:00

Contractors should know that an opt-out provision will no longer be available, so homeowners cannot agree to waive their rights under the law. Even having homeowners certify that there are no pregnant women or children under 6 in the facility may not provide full-proof protection against a future claim. For that reason, contractors should do some due diligence of their own and document all steps taken in order to stay in compliance with the law. If the work is going to be done on a post 1978 home, the contractor will want to obtain independent confirmation from the town or registry of deeds that the house was really built at that time. If there are no children present, the contractor should be on the alert for children who may appear regularly at the premises and issue a “change work order” if the children are there frequently enough to activate the requirements of the rule. Finally, if there are females who could be pregnant who frequent the household, the contractor might want to be better safe than sorry and follow the containment procedures.

Lead Containment is not Lead Abatement

2010-03-15T22:44:00.000-04:00

An interesting aspect of the Rule is that the containment procedures do not require or even encourage lead testing. Although lead testing can be requested by the homeowners, my understanding is that the ramifications of having high lead levels documented in one’s home can be far-reaching, including being required to perform a complete abatement, having trouble obtaining a mortgage, and issues regarding disclosure when selling the home.

Lead-Based Paint Renovation, Repair and Painting Program Rule

2010-03-02T22:12:00.001-05:00

As promised, I have been spending the last few weeks learning about the new Renovation, Repair and Painting Program that is going into effect on April 22, 2010. Contractors are scrambling to become certified and make themselves familiar with the law's requirements. It is my responsibility to read the law and try to predict where the legal issues will arise so that construction companies can protect themselves.

The first question is, in which situations does the Lead-Based Paint Renovation, Repair and Painting Program Rule apply? Directly from the EPA’s literature on the subject:

It applies to interiors where more than 6 sq. ft. of painted surface or 20 sq. ft. of exterior painted surface will be disturbed.

Remodelers-Get Your Application for Certification in Now!

2010-03-02T18:54:00.002-05:00

In order for a General Contractor to work on a renovation project under the Lead-Based Paint Renovation, Repair and Painting Program Rule at a Target Housing, the contractor must apply for firm certification. Given that the law goes into effect on April 22, 2010 and the EPA has up to 90 days after receiving a complete request for certification to approve or disapprove the application, all firms intending to do renovations should apply now so they will not be faced with having to cease work if certification is not received by that time.

Why You Need a Good Contract

2010-01-16T17:37:00.002-05:00

I have posted on this issue before, but when I was at a BAGB (Builders Association of Greater Boston) meeting the other day, contractors where talking about how difficult it is to present homeowners with a contract, and how they worry about scaring them off with something too long or complicated.

I am sympathetic to that issue, and understand that contracts make people uncomfortable. What I try to emphasize with both homeowners and contractors is that 1) the law requires a written contract for renovation work over $1000; and 2) a contract reflects a "meeting of the minds." The contract is the most important part of preparing for a renovation or new construction project because it helps the contractor manage expectations with the homeowner. Discussing the contract terms requires the homeowner and contractor further define the scope of the project and set a realistic payment schedule. It lets the homeowner know what is included and which additions would require a change order.

The clients learn what would happen if change orders are necessary and how they will be handled. The parties agree on what would constitute an unreasonable delay. Problems are anticipated and dealt with preemptively. As an arbitrator I know says, "A good contract is negotiated, and then it gathers dust on the shelf."

This experience is in huge contrast to the usual scenario in my practice. I receive a call from a desperate contractor or homeowner and things are going terribly wrong. It is usually too late to get the project back on course, and on some level, everybody loses. That is why I started this blog; to serve as preventative medicine, and to encourage more people to take the proper approach to a renovation or new construction project by discussing the project thoroughly. This process ensures a successful home improvement project.

Lead: Renovation, Repair and Painting Program

2010-01-16T17:27:00.002-05:00

Over the past couple of weeks I have started learning about the new lead paint law that is going into effect on April 22, 2010. Contractors who do renovation work on pre-1978 houses will have to obtain certification in lead containment procedures. If they do not comply with the law, the penalties are stiff: I have heard that they range from $32,000 to $37,000.

So, I am doing everything I can to get up to speed on the law as quickly as possible, and organizations like BAGB (Builders Association of Greater Boston), HBAM (Home Builders Association of Massachusetts) and NARI (National Association of the Remodeling Industry) are running meetings and trainings to prepare for this change in the law.

As a lawyer, it is my job to anticipate where the legal issues will arise when this law is implemented.

So far, I see the following:

1. Contracts with homeowners will have to spell out the requirements and protect the contractors from liability as much as possible.

2. Contracts with subcontractors will have to allocate liability and record-keeping requirements for each party's role in the job.

3. Documentation will have to be reviewed for compliance.

4. Construction companies will need representation before the Environmental Protection Agency when being investigated or fined.

So, I will be doing my best to protect you and enable you to continue in your business in a productive, successful fashion. Now, more than ever, you will need to have your contracts reviewed and updated to reflect the changes in the law.

Green Houses are Booming

2009-12-11T09:50:00.002-05:00

Statistics keep supporting the fact that green construction is up, even though the construction industry has been hit hard by the economy. If you aren't learning about green construction, you should be.

http://content.usatoday.com/communities/greenhouse/post/2009/12/green-home-sector-booms-despite-housing-slump/1

Challenge to Massachusetts Builders

2009-12-11T00:33:00.002-05:00

Send me your residential renovation or new construction contracts (residential or commercial). After signing an engagement letter, I will review your contracts for free! If I don't find five things that might hurt your business, I will donate $50.00 to charity. If I do, you agree to donate $50.00 to charity. That's it. No strings attached. You do have to let me explain my recommendations to you; preferably in person.

Conclusion of Risks in Green Construction

2009-12-07T09:04:00.000-05:00

Conclusion

More risk in green construction
Maintain excellent communication with your clients
Allocate risk and responsibility in your contract.
Keep apprised of developments in state and local law.
Maintain familiarity with available rebates.

Dealing with Suppliers in Green Construction

2009-12-05T09:03:00.000-05:00

Suppliers

Only choose reputable suppliers
Include disclaimers if consumers or designer insists on an unfamiliar product.
Make sure you acquire all necessary documentation for installation, warranties and rebates.
Make sure proper installation procedures are followed.

Contracts with Designers in Green Construction

2009-12-02T09:02:00.000-05:00

Designers:

Allocate liability between builder and designer as clearly as possible
Reserve right to trump designer if not feasible or in violation of local laws or building codes.
Consider whether designer will remain involved throughout the project.
Request indemnity clause. They will pay the builder back if they are held liable.

Contracts with Subcontractors in Green Construction

2009-11-30T09:01:00.000-05:00

Subcontractors:

Include indemnity clauses for their role in the installation
Require lien waivers when work is complete and subs have been paid.
Make sure your subs are well versed in the installation of the “green” product.
Provide them with manufacturer’s documentation in order to ensure warranty.

The Green Contract with the Consumer

2009-11-28T08:59:00.001-05:00

1. Contract with Consumer

Include type of certification sought and appendix with all requirements.
Have consumer initial all pages and sign off.
Do not promise what you can’t deliver.
Installation is on builder but can have indemnity agreement with subcontractor.
Failure to install properly can invalidate manufacturer’s warranties.
Designate who is responsible for rebates
Can always provide a warranty for your workmanship.
Include suggested guidelines for performance, but do not guarantee performance.
Spell out homeowner’s responsibilities to ensure performance.
Include change orders for a greater than ten percent increase in the cost of materials.
Include the right to substitute like materials if a given item is no longer available.

The Contract in Green Construction

2009-11-27T08:59:00.000-05:00

The Contract is your most important protection against risk. Cover all potential areas of risk in your contract.

Types of contracts

i. Builder/Owner

ii. Builder/Designer

iii. Builder/Subcontractor

iv. Builder/Supplier

Performance of Green Buildings

2009-11-26T08:58:00.000-05:00

1. Performance

Avoid guarantees if possible.
Allocate risk amongst builders, subcontractors, suppliers and owners.
Account for regional variations
Only pass on manufacturer’s warranties
Discuss maintenance responsibilities

Warranties in Green Construction Contracts

2009-11-24T08:57:00.000-05:00

1. Warranties

a. Clearly delineate warranties for materials, installation and performance.

b. Allocate risk

c. Beware of implied warranties in your state.

Green Materials and Supplies

2009-11-23T08:56:00.000-05:00

1. Green materials and supplies

a. Beware of “greenwashing” and potential for fraud.

b. Educate yourself about options.

c. Include disclaimers for materials chosen by consumers

d. Pass on manufacturer’s warranties

e. Beware of implied warranties in your state

The International Living Building Institute (ILBI)

2009-11-22T12:05:00.003-05:00

In prior posts, I have brought up the possibility that other green certification standards may surpass LEED. Here is a blog post about a standard that claims to go beyond LEED and consider issues that LEED does not cover, such as beauty and aesthetics:

http://www.examiner.com/x-27898-Green-Technology-Examiner~y2009m11d15-Move-over-LEED-make-room-for-ILBI?cid=exrss-Green-Technology-Examiner

What do you folks think of the ILBI standard?

Rebates and Tax Incentives

2009-11-22T08:55:00.000-05:00

1. Rebates and Tax Incentives

a. Familiarize yourself with requirements for rebates and tax incentives.

b. Designate responsibility for the acquisition of rebates.

c. Avoid guaranteeing acquisition of rebates to homeowners if possible.

Considerations Regarding Certification

2009-11-21T09:00:00.000-05:00

Certification
a. Discuss options with homeowners.
b. Consider design team to maximize cost savings
c. Provide overview to homeowners.
d. Decide whether it’s worth to receive a level of certification.
e. Make sure homeowners are aware of increased financial burden
f. Familiarize yourself with local and state laws that may affect certification (zoning, conservation commission).
g. Changing nature of certification (requirements are fluid)
h. Potential for need to renew certification.

Types of Certification Available for Green Residential Construction

2009-11-20T17:00:00.000-05:00

Many standards to choose from:

LEED for homes
NAHB Green Building Certification http://www.nahbgreen.org/Certification/homecertification.aspx
Energy Star
Proposed Standard 189, Standard for the Design of High-Performance Green Buildings Except Low-Rise Residential Buildings, is being developed by the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standard

e. American National Standards Institute (ANSI). The resulting ANSI approved ICC-700-2008 National Green Building Standard defines green building for single and multifamily homes, residential remodeling projects and site development projects while still allowing for the flexibility required for regionally-appropriate best green practices. Similar to the NAHB Model Green Homebuilding Guidelines, a builder, remodeler or developer must incorporate a minimum number of features in the following areas: energy, water, and resource efficiency, lot and site development, indoor environmental quality, and home owner education. The more points accrued, the higher the score. The Standard, however, includes more mandatory items and suggests that higher thresholds be met in several categories. A new threshold - "Emerald" - was added to denote the highest achievement in residential green construction.

Why Green Construction Could Be Less Expensive

2009-11-19T21:06:00.002-05:00

We in the field who follow developments in green construction frequently hear that it is wonderful to "go green," but unfortunately it is usually more expensive. For that reason, "green" is still more of an upper class option, or one for those who do it because they are committed to improving our environment.

Some experts say that green can be a "no lose" proposition when the construction is carefully planned, and the energy savings performance offsets the increased costs of construction, materials and supplies. However, the amount of funds saved may not offset the initial cost of green construction for years. The calculations seem to indicate that they eventually will.

One of the factors in making a green construction project a success is planning. Ideally, the project will have all of the subcontractors on board from the beginning. Materials will be chosen in advance. The team will coordinate and work together when the project commences. Design defects will be discovered. Everyone will be on the same page. Disagreements will surface early and be resolved.

All of these characteristics of a properly orchestrated green project can save huge amounts of money that is wasted on unnecessary delays, errors that require fixing, mis-ordered or delayed supplies, subcontractors who do not show up when expected, etc.

In a perfect world, projects operate like clockwork, delays never occur, costs never increase, and concealed conditions do not exist. However, that is not the reality of the life of a construction project. Interestingly enough, the model for how to properly execute a green construction project can clearly prevent a number of these issues. That's why I believe that green construction projects do not only make environmental and moral sense, they make economic sense as well.

Resources for Information Regarding Green Construction

2009-11-19T21:05:00.000-05:00

Resources

NAHB-National Green Building Program http://www.nahbgreen.org/
LEED for Homes http://www.usgbc.org/DisplayPage.aspx?CMSPageID=147
ANSI Green Building Standard http://www.nahbgreen.org/Guidelines/ansistandard.aspx
ASHRAE Green Building Standard http://www.ashrae.org/pressroom/detail/16309
Green Real Estate Law Journal http://www.greenrealestatelaw.com/
Green Building Law Update http://www.greenbuildinglawupdate.com/
Green Building Law http://www.greenbuildinglawblog.com/

Potential Areas for Risk in Green Construction

2009-11-19T09:00:00.000-05:00

Potential areas for risk:

Certification
Rebates and tax incentives.
Green materials and supplies
Installation
Warranties
Performance

Starbucks and LEED Certification

2009-11-16T21:07:00.002-05:00

Before I continue with my legal issues in green construction series. I have to report about two of my main interests in life these days: Starbucks and LEED certification.

Starbucks is my favorite coffee. In fact, if I must admit it, I am a little obsessed.

They are using their market influence to adopt a practice for LEED certification for all of their new stores. They are also using LED lights. That helps justify my spending $3.50 on a cappuccino. After all, it's for a good cause.

Here's the article:

http://www.reuters.com/article/mnGreenBuildings/idUS32581121620091113

Green Building Addendum from Consensus Docs

2009-11-13T19:43:00.001-05:00

Thank you Matthew DeVries for this post on the new green provisions available from Consensus Docs. This goes well with my series on green building:

http://www.bestpracticesconstructionlaw.com/2009/11/articles/green-building/hot-off-the-press-consensusdocs-releases-green-building-addendum/

Legal Issues to Consider in Green Construction

2009-11-11T22:06:00.003-05:00

I recently participated in a webinar for Professional Builder Magazine called Legally Green: Deliver the Green You Promise. In that presentation, I discussed the additional risks for liability in green construction and how builders can protect themselves. I am going to publish a series of posts that summarize the areas that I have identified that may cause disputes as time goes on.

First some statistics from around the Internet regarding the current status of green construction on the residential side:

Green building is up even though construction is down. The National Association of Home Builders recently released figures from a survey of multi-family builders and developers.

74 percent of respondents said that their buyers and renters are willing to pay more for green amenities. However, the median additional amount that they’re willing to pay is just 2 percent.

89 percent of respondents (again, multi-family builders and developers, nationwide) said they are currently installing energy-efficient appliances and lighting in their projects; 79 percent are installing low-E windows; 64 percent are incorporating recycled materials and 50 percent are installing greater insulation than required by local code.

http://www.contractorheadlines.com/2008/09/green_building_statistics_dema.html

On the residential side, McGraw-Hill Construction’s 2008 summary shows that 56% of green home purchasers earn less than $75,000 per year and that 29% earn less than $50,000. http://theleed.com/2009/04/the-statistics-are-bullish-on-green/ Homeowners are attracted by lower operating costs and receive less expensive utility bills because of energy and water efficiency measures. Green homes are more comfortable and have relatively even temperatures throughout the home, with fewer drafts and better humidity control. Environmental quality is improved because builders pay extra attention to construction details that control moisture, choose materials that contain fewer chemicals, and design air exchange/filtration systems that can contribute to a healthier indoor environment.

Green homes have enhanced durability and require less maintenance. They incorporate building materials and construction details that strive to increase the useful life of the individual components and the whole house. Longer lasting materials not only require fewer resources for replacement but also reduce maintenance and repair costs. Green homes have lawns that require less weeding and watering, building elements that require less maintenance, and more durable building components that reduce the time needed for upkeep.

It is important to note that a builder can do only so much when it comes to how the home will perform. Homeowners play a big role in the house performance and, therefore, should be instructed on how to operate the green home as it was intended. Anecdotally, builders are adding green features even without advertising them.

The next post will discuss types of certification available.

How Construction Clients Can Help Themselves

2009-11-04T00:03:00.003-05:00

Here's to Timothy Hughes, who wrote this post:

http://www.stumbleupon.com/s/#1j5Fqr/www.valanduseconstructionlaw.com/2009/10/articles/litigation/how-construction-and-other-clients-can-help-themselves//

I will add one: I try to respond to clients as quickly as possible when they contact me. Please afford me the same courtesy.

Stimulus Dollars and Massachusetts Construction

2009-11-02T23:51:00.003-05:00

Here's an exciting piece of information. Finally some goods news from Chris Thorman, who blogs about construction estimating software. MA is the top job generator with stimulus dollars for construction.

http://www.softwareadvice.com/articles/construction/state-by-state-is-the-stimulus-bill-creating-construction-jobs/

Hotel Goes Green, but Forgoes LEED Certification

2009-11-01T17:31:00.002-05:00

As you may know, I am taking a class in LEED 2009, and am considering taking one of the exams. One of the questions that keeps plaguing me is why bother? The documentation process is incredibly detailed, the requirements are extensive and one has to hire a commissioning agent for some of the credits. I keep wondering how much expense is added when one tries to attain LEED certification and whether it's just an option for the elite.

This blog post speaks to that issue and actually spells out the numbers.

http://www.hotelinteractive.com/article.aspx?articleid=15282

As the article states, "Doing the government documents alone cost $50,000." This does not make me happy. On the one hand, we are told that LEED certification is the goal. It is an achievement of which to be proud. It shows a dedication to preserving and improving our environment. However, a consultant and/or commissioning agent is usually required, and now further regulations have come into effect requiring reporting of water usage and energy performance for five years, with the ever-looming threat of de-certification.

With other certification processes out there, will LEED win out? Will people still bother becoming LEED accredited? What do all of you think? I predict that the market will start demanding more flexibility in LEED, or it will lose its hold on the market.

LEED to Become More Stringent

2009-10-31T11:12:00.002-04:00

http://southeast.construction.com/features/2009/1101_GreenDesignAndConstruction-1.asp#

This post is a good follow-up to my recent webinar for Professional Builder Magazine, "Legally Green: Deliver the Green You Promise." It discusses the latest requirement for LEED, which includes providing water and energy-usage data for five years after the building is complete. It means that a building could face de-certification.

From a legal standpoint, this could be a nightmare. Who would be liable? What sort of guarantees are now going to be required from contractors and construction companies? What about those who provide subsequent repairs and maintenance? The issues regarding causation alone could result in years of litigation.

I am going to be publishing a series of blog posts from my presentation that will elaborate on these issues, but I can't help wondering whether the powers that be should be planning more carefully before imposing these restrictions.

This kind of stringent requirement could result in builders pursuing other green certification programs and avoiding LEED altogether.

On a Federal Construction Project? Remember the Miller Act

2009-10-22T23:33:00.003-04:00

A New Guest Post from Christopher Hill

Chris Hill is a construction lawyer at DurretteBradshaw, PLC in Richmond, Virginia, LEED AP, author of the Construction Law Musings Blog and member of Virginia's Legal Elite in Construction Law. He specializes in mechanic's liens, occupational safety issues, contract consulting and review and general risk management for all levels of construction professionals from contractors to subcontractors to material men.

Federal and State government work are a growth area in construction these days. With the economy in a downturn (though possibly turning around according to ENR), government projects are even more desirable for commercial contractors.

With this trend toward government contracting, becoming the lowest bidder and squeezing your margins is a big temptation, or even necessity. Along with this lower margin comes higher risk.

However, one saving grace for contractors on Federal projects is the Miller Act. Essentially, the Miller Act was created because contractors cannot put a mechanic’s lien on federal government property. It requires that all projects with a contract value over $100,000.00 have a payment and performance bond, provided by the general contractor.

The payment bond is what I will discuss here as it is the most utilized of the two. As its name implies, this bond is there to assure that subcontractors and suppliers who provide work to the project are paid. With the proper notice, and when meeting the filing requirements, the question then becomes the value of what was provided, and not whether payment will occur.

The Miller Act requires that a subcontractor or party, contracting with a subcontractor, but not in a direct contractual relationship with the general contractor, provide a notice to the general contractor (or principal on the bond if the principal and GC are different) within 90 days of the last work performed or material supplied for which it claims payment. Then, if no payment is forthcoming within 90 days of the date payment is due, suit must be filed within one year of this last work. If this procedure is filed, in my experience a settlement will be forthcoming.

One caveat, the protection of a Miller Act bond extends down only as far as the “second tier” level. In short, a supplier to a second tier subcontractor is not covered. Make sure you keep this in mind when you consider your (or your client’s) claim.

The federal Miller Act has cousins (or “Little Miller Acts”) in most every state that relate to state government projects, so I encourage you to check these out and call an attorney (in MA, Andrea is a good one) to discuss your options with these projects.

Why Builders Shouldn't Cut Their Prices

2009-10-21T21:54:00.003-04:00

In a previous post, I discussed why now is a good time to renovate. I pointed out that builders are not as busy and can devote more time to their projects, the economy has weeded out a number of "fly by night" contractors who were not truly dedicated to the profession and there have been sales on supplies and materials. One advantage that I did not mention, however, was the opportunity to ask builders to cut their prices. That's because I do not believe it's reasonable for owners to try to negotiate lower prices, and it's not good for the profession for builders to do so.

Professional builders are usually quite realistic when preparing proposals for projects. I have met many contractors who proudly tell me that their jobs do not go over budget (barring unforeseen circumstances). They are usually quite clear about their markups and profit margins and accurate when determining allowances. They exemplify the adage that "you get what you pay for."

Consider for a moment the bid that comes in that is significantly lower than the others. Owners may be happy to seize the opportunity to get a job done for a bargain price. However, I have frequently seen the rest of the story in my practice. The project begins and then the owner is hit with a series of change orders that jack the price up to those of the other bids, or once the work is finished, the owner receives a final bill for "extras" that achieves the same result. Or, the contractor cuts corners and substitutes inferior materials or does work that is not up to a reasonable standard. At that point, a huge dispute arises and the parties end up in costly litigation.

Although this post may be filled with cliches, if something seems "too good to be true," it is. Choose a contractor based on references and experience. Do not try to bargain and take advantage because construction is slow right now. It is better to change the scope of your project and pay a fair price. This benefits all of the parties in the end.