Lead Inspections & Fines with Gary Kelleher

This is part of the Worcester Rental Real Estate Networking and Training series.

[Start 0:00:00]

Rich: We’re very lucky to have to have Gary here. He came very highly recommended as an inspector, and people don’t get generally excited about inspectors. We were excited to have this guy. He came recommended by a guy who owns hundreds of units and this fellow has been in the business for over 20 years now. He does testing. He does inspections. You’re fast. He does consulting for businesses and companies. He trains contractors. He’s been doing that for years. He’s been training property owners for 15 years, and he’s been in the city here since the 1970s, so he knows our rental market, he knows our environment. He is going to help us learn about the inspection process. His name is Gary Kelleher [applause].

Gary: Thank you. Thank you and thanks, Rich, for inviting me here. I wanted to give you some information about a couple of topics that Rich asked me to address. One was the difference between RRP and deleading, and I know you’ve heard a little about that in the last few minutes. Another was the enforcement aspect for noncompliance with the lead law. In about 5 minutes, I pulled out four examples of some prosecutions that have taken place recently including Worcester County for noncompliance with the lead law. I can bring up some examples. So the enforcement has gotten more active in the last 3 years than in the prior 15 years I’d say. Let’s see. Let me show you some; most local examples.

Okay, so this case was prosecuted 2 years ago. It was in the news. How many of you saw it? It was in Leicester. You saw that? The owner was charged with criminal violations. He was taken to court. He pleaded guilty. He was sentenced to 3 years probation, 300 hundred hours community service, ordered to delead his properties for the one property that had started the case. He paid $9,825 in restitution to the tenants. And the case involved a complaint from the tenant to the local board of health. It could be just the situation that Doug described where there was nonpayment of rent, and a tenant heard that they could turn the tables by filing a complaint about the presence of lead paint in the apartment.

I don’t know what the situation was that got that case started, but once the Leicester Board of Health got involved, they came to the property and did a spot test for lead ‑ there was one thing that happened just before that. The owner had told the tenants that there was no lead paint in the apartment. There had not been an inspection. Then the tenants got a home test kit at the store for about $5, and they rubbed the chemical on some different places around the apartment, got a reaction that indicated the presence of lead. They called the board of health and gave that complaint. Then the board of health came over, did their own spot-test with a different kind of chemical, and they also found an indication there was lead, so they gave an order to the property owner to delead, with timetables.

The property owner then delivered letters of deleading compliance to the tenant and to the board of health. The one problem was that there hadn’t actually been any deleading involved [laughter]. That’s what caused the problem because the Leicester Board of Health then conferred with the State Health Department that oversees the program of licensing inspectors and having inspectors do compliance letters. Also the State Health Department and their agency called the Childhood Lead Poisoning Prevention Program, they maintained a database of inspectors that anybody can access. It’s on the state’s website, mass dot G-O-V, mass.gov. It lists all of the licensed inspectors, their names, phone numbers, their license numbers, and the information on the compliance letters didn’t match the information on the state database for inspectors.

[0:05:14]

The licensed inspector on the compliance letter wasn’t listed as a licensed inspector on the database, so that triggered the inquiry to the state health department about this letter. Is it valid? They examined it, looked up the people on there. The inspectors listed on there were not real inspectors. The license numbers in one case ‑ there were two apartments – one case did not exist and the other case belonged to a different inspector, and all the phone numbers on the letters of compliance were nonexisting phone numbers.

The case was referred by the Mass Health Department to the Mass Attorney General’s office, and the Mass Attorney General’s office had no trouble proving that those were fraudulent documents. A first year law student could have proved that. You see what the penalties are.

Here’s another example. This was last year. It was a year ago this week. The case was resolved in court. The landlord was ordered to pay $23,000 to the tenants in Roslindale and it was a case of discrimination. The tenant had a pregnant wife. The landlord suggested that they should find a different place to live because the place had lead paint. Well, that is not permitted under the state law, so they filed a complaint. That complaint was picked up by the State Attorney General’s office. Twelve thousand dollars went to one tenant, $11,000 went to the other tenant, and there was no defense. There was no defense. Their motivation was simply to avoid deleading the apartments. Their strategy was to try to encourage the tenants to move out. That’s discrimination. That’s patently illegal under the Massachusetts law.

Here’s another case that was a year ago. See where this case was ‑ Suffolk University Law School. Has anybody heard about what they’re doing with respect to lead paint and landlords?

Male Audience 1: Testing.

Gary: Testing, exactly. Some tenants contact them and say, “We’re being discriminated against. Our landlord has requested that we leave either at the end of our lease or sooner.” The folks at Suffolk University Law School have a housing discrimination testing program. Some landlords refer to it as a sting operation, but regardless of what you call it, it’s a program where they will follow up on posted apartments and they will send in two testers independently – one who states they have a child under 6 and one who states they do not have a child under 6. They record fastidiously the results, and when there is patent discrimination, they refer that to the attorney general’s office. Then when the attorney general’s lawyers go and interview the tenants and they find the tenants have been told they need to leave because they have children under 6, that just reinforces the cases against them. Many cases like this have been brought to court in the last 3 years and they never end well for the owners.

Here’s the last example I’ll give you, then I’ll move on to other subjects. This owner leaves in Newton and owns 24 units in Chelsea, Newton, Boston, and Arlington. This owner got very aggressive with tenants that had children. He didn’t rent to any children knowingly, but in some cases tenants moved in with children; in some cases tenants became pregnant and had children in the apartments. In either case, he threatened tenants in every conceivable way. In some cases, he threatened to contact authorities about their immigration status. In some cases, he threatened them physically that he would do them harm if they didn’t move out. The attorney general’s office had no trouble prosecuting that case. That was 3 years ago that happened.

[0:10:49]

Rich: Gary?

Gary: Yeah.

Rich: In addition to terrifying the group about discrimination, can we also talk about the RRP rules a little bit more? What does stand RRP stand for?

Gary: I was just about to get to that.

Rich: No way.

Gary: Now that I’ve set up the audience on tenterhooks, let me tell you that RRP became law nationwide in 2010. In April 2010, these regulations called lead safe renovation repair and painting became fully effective. What that meant was that anybody who was performing work for compensation in properties built before 1978, and this includes both residences and daycare centers, must have 8 hours worth of training for at least one person who is performing the work. That person is then enabled to train other people to work with them.

The first person who takes the 8 hours of training is called a certified lead safe renovator. The associates that that person trains are then called trained lead safe workers. It’s mandatory in all cases where work is being done for compensation. The regulation was originally intended to be used by or targeted toward painters because house painters were seen as the prime example of people who were performing work on a routine basis, which poisoned homes by contaminating them with lead dust.

As the regulation was developed between 2005 and 2008, it was expanded to include many forms of contractors, many categories of contractors who performed work in homes. This includes renovation contractors, carpenters, electricians, plumbers, could even be roofers. Anybody who’s disturbing painted surfaces in homes built before 1978 for compensation is bound by this regulation. The term “for compensation” is pretty expansive because in the case of property owners who live in the property and rent out some of the property, the only portion of the property that’s exempt is the portion that the property owner lives in, one unit that they live in.

The interior of that unit can be worked on without these rules being in effect. It’s an exemption if you will for an owner working in their own property, but it’s restricted to just that portion that is not a rental portion. In the case of a single-family home, the property owner can do their own work. They’re not covered by this regulation. In the case of a multifamily, work done in rental units is covered. Work done on the exterior is covered; interior shared spaces like hallways and staircases, it’s covered.

The rules changed in Massachusetts later in 2010. The EPA offered this program to all of the states to have the states take over administration of the program. Massachusetts and 13 other states have taken them up on that offer. Later in 2010, Massachusetts put in its own regulation, passed its regulation in legislature that had this program become a state-run program and the EPA handed off administration of this program to Massachusetts. It’s run by the group called the Department of Labor Standards, part of the Massachusetts government that’s geared to worker safety and managing work being done for compensation.

[0:15:25]

We now have a state-run program. It’s been in place for 5 years and it is being enforced. There are penalties being racked up every single month by a large number of contractors and property owners. A list of them is published on the state’s website, mass dot G-O-V, mass.gov. Not as egregious for the most part as the examples I gave of noncompliance with the state lead law where there’s discrimination or fraud involved. For the most part, these fines have been against painters and small property owners to the tune of $1,000 to $3,000. There was a period from 2010 to 2012 where there were very few fines being given out, and the State Department of Labor Standards was issuing warnings. They were following up in cases of complaints. The complaints were issued either by the tenants, by neighbors, or by contractors who didn’t get the job they bid on. These complaints were followed up very carefully and when the 2-year period passed for introducing this in Massachusetts, they started issuing fines.

The difference between the RRP rule – renovation, repair, and painting – is that renovation, repair, and painting activities are routine activities that are not defined as deleading. The deleading law in Massachusetts has been in place since 1990. In some cases, in some ways, the late ‘80s had a version of the law. But that law that’s been in place now for all these years requires properties to be made lead safe, not lead free but lead safe. So lead paint can be covered where it’s considered hazardous, could be removed, components can be replaced to achieve what’s called compliance with the Mass Lead Law, which is a lead safe standard.

Activities which achieve compliance with the Mass Lead Law, which are intended to result in compliance being certified, are called deleading activities. Deleading activities have now for 25 years been closely restricted and can only be performed by people who are authorized by the state to perform deleading activities.

You heard Doug mention that there are three categories of deleading authorization. They’re referred to as low-risk deleading, moderate-risk deleading, and licensed contractor work or high-risk deleading by application. High-risk deleading is the traditional kind of deleading that the state started with. It emphasized removal of paint and paint scraping, stripping of paint, that kind of thing.

Moderate-risk deleading was a compromise program that was set up to make the process easier for property owners. It became effective in November of 1995, and it allows property owners to do their own deleading after taking an 8-hour course. You heard mention also that if a course for RRP is taken, then it’s a 4-hour course. Buy by taking this version of a deleading course called moderate-risk deleading, the property owner can delead their own property with some restrictions.

The things they can’t do are strip paint to remove it completely. They can’t do that because that’s considered something that releases too much dust into the air. But what people can do under moderate-risk deleading is replace things that have lead paint. Think of window replacement, think of interior trim replacement, think of exterior component replacement, poor tailings and so on. They can also cover lead paint. On the interior, coverings take forms like putting new drywall over plaster walls or putting that special paint that was discussed earlier called lead encapsulant paint over components.

Female Audience 1: Paneling.

[0:19:58]

Gary: Paneling, yeah. Other durable materials can be used as covering, so there are many, many kinds of coverings that can be used. I gave you some interior examples. On the exterior, you heard earlier about vinyl siding being used as a covering over lead paint, aluminum wrapping over trim is a covering for the exterior. Replacement of components is a major part of that and that can be done by the property owner after taking this single course, and I know because I’ve been teaching this course since it started 20 years ago now.

Rich: Gary, can I ask you a question about RRP?

Gary: Who is it?

Rich: Yeah, I’m hiding over here.

Gary: Yeah, Rich.

Rich: So let’s take a scenario because this is something that is very routine and something that can come up. I want to know if this is okay. Let’s say there’s a leak underneath the kitchen sink. We have to replace that base cabinet. We have a letter of compliance.

Gary: Yeah.

Rich: But there’s probably lead paint behind the cabinets okay because you mentioned covering is okay with durable materials and cabinets will qualify, right, as durable? Okay, so now I have to take that cabinet out and I have to replace it. Am I going to run into any kind of RRP issues if I’m not licensed or if my contractor is not licensed who is doing this?

Gary: Yes. I think jumping back and forth between two sides, and I’m afraid I haven’t explained very well the difference between these two. The RRP, the renovation, repair and painting, is not considered deleading. But when it’s not being done for the purpose of achieving a letter of deleading compliance, then the work would fall into these categories: renovation work, repair work – you’re talking about a repair example – or painting, routine house painting, interior or exterior painting. These activities are described and restricted by these new set of regulations that’s referred to as RRP.

Don’t think of it as deleading. Think of it as impacting lead paint in the course of routine activities, and this work has to be done by people who have minimum amount of training, either one day for the certified person. There is required to be a certified person involved in each project, or the addition of people when more than one person would be involved in the project need to be trained by the first person. When there is something like replacement of a cabinet being done for repair purposes, these RRP rules do have to be to be followed. Whoever is doing the removal of the old cabinet and putting on a new cabinet has to have that certification, one-day certification. Without it, there is a violation.

In the course of performing this work and following these new rules called RRP, certain precautions have to be taken but they’re not as restrictive as the deleading rules. For example, occupants don’t have to move out of an apartment. That’s a major difference but plastic has to be put on the floor. There has to be a careful cleaning operation at the end and so on.

Rich: So it sound s like it might be a valuable thing Doug had mentioned we should probably go and take the course. It sounds like ‑

Gary: Let me put in a plug. I’ve been teaching that course twice a month for 5 years now at ARS Restoration Services in Newton. If you’re looking for a place, that’s one and I’ll be the instructor because I’m the only instructor there.

Rich: Excellent.

Gary: Were there other questions that I didn’t get to?

Rich: We do have other questions. We are tight on time, so do you have a couple of minutes to hang out afterwards?

Gary: Yes.

Rich: That would be terrific. Excellent. That was really a wealth of information, and Gary has agreed to hang around afterwards if we have additional questions that don’t get answered by the next fellow we have coming up from the city. So let’s Gary a big round of applause [applause].

Gary: Thank you, thank you.

[End 0:24:20]

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