Legal Aspects of The Built Environment

Reality Bites – Caught “Lead Handed” on TV

  Do TV contractors poison their real world customers? According to an EPA press release dated June 5, 2018: “The U.S. Environmental Protection Agency (EPA) and Magnolia Waco Properties, LLC, which does business as Magnolia Homes, have reached a settlement to resolve alleged violations of the Toxic Substances Control Act (TSCA) Lead Renovation, Repair and Painting Rule (RRP Rule), related to home renovations conducted without adequate lead paint protections as depicted on the television program Fixer Upper. Under the terms of the settlement, Magnolia will take steps to ensure compliance with lead-based paint regulations in future renovation projects, address lead-based paint hazards at high-risk homes in Waco, Texas, and educate the public to lead-based paint hazards and appropriate renovation procedures.” Allegedly, according to a November 29, 2017 administrative complaint, Chip and Joanna Gaines, stars of HGTV’s “Fixer Upper” and owners of Magnolia Waco Properties, LLC (d/b/a Magnolia Homes), “did not …

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EPA Still Says Get the Lead Out

Through back channels only at the time of this writing, EPA announced the results of its “Section 610” review of the lead safe rules (RRP). One of the interesting findings is that since the RRP rules were first issued, the science behind lead contamination has changed. In the announcement of the EPA Office of Pollution Prevention and Toxics dated April 2018, the EPA recognizes that lead is even more toxic than previously understood. On first reading of the 67-page announcement, it appears that this fact is significant in EPA’s reasoning behind keeping the rule intact and not re-instituting the old opt-out waiver. The conclusion is that danger still exists, that the overall economic costs of lead poisoning outweigh the costs of compliance, and finally that the issue of high false positive lead test kits is not sufficient to weaken the lead protection. [Copy of EPA Section 610 Review here or see …

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Risk Management – How to Avoid the Construction Wheel of Misfortune

Risk management is everywhere. The principles, definitions, and plans involving risk management can be applied to almost any industry or endeavor. Depending on the industry, the sources of risk and the consequences of a particular risk, the approach to risk management will vary. Some risk management is mandatory. For instance, the EPA requires facilities that use extremely hazardous substances to submit a risk management plan (RMP) every five years to be in compliance with Sec. 112(r) of the 1990 Clean Air Act Amendments. On the national level, the Department of Homeland Security developed a National Infrastructure Protection Plan outlining, “how government and private sector participants in the critical infrastructure community work together to manage risks and achieve security and resilience outcomes.” Some risk management plans are recommended by government agencies as industry standards. The US DOT Federal Highway Administration published a guidebook, Risk Assessment and Allocation for Highway Construction Management, …

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Smile – Caught on RRP Camera

EPA Crowdsourcing lead paint enforcement in New England Crowdsourcing: The practice of outsourcing a job or task that is traditionally performed by employees or a contracted company to a non-organized, usually large group of people, generally in the form of an open call or competition. Note to self: Don’t break law in plain sight of your competition Renovator Rule Violation Rockland Maine_1 UPDATE (5/31/11): YouTube has taken down the video for unspecified violations of the Terms of Service. Last Fall, I found this video while updating a PowerPoint presentation on the legal aspects of the EPA Lead-Based Paint Renovation, Repair & Painting (RRP) Rule.  I showed it to a group of contractors at my next seminar and warned: “Be careful, these days everybody has a video camera.” At that time, the EPA had not yet enforced any provisions of the new RRP Rule.  Prior enforcement had dealt with the long-standing customer …

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BIM Coordination Dispute

Architectural Record reports that XL Insurance recently settled a messy case arising out of the use of Building Information Modeling (BIM) to design and construct a life sciences building at a major university.  XL representatives would not name the parties involved but commented on the dispute to make people aware of the risks of BIM. The dispute centers on the lack of communication between the designers of the BIM model and the subcontractors actually responsible for performing the work – in this case the MEP contractor.  The BIM model’s tolerances for spacing in the plenum were very tight but the nature of the restriction was not communicated properly to the MEP contractor.  After the mechanicals were about 70% complete  using normal sequencing, it dawned on everyone that they were out of space.  Apparently, the design team did not communicate to the contractor that the very tight tolerances could only be achieved …

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Roofing Snow Jobs – Contractor Door-to-Door Sales

  Door-to-Door Sales and the FTC Home Solicitation Sales Act So a contractor gets a call from a frantic homeowner in Massachusetts.  She pleads with the contractor to come out right away and fix something.  She says it is an emergency!  The CNN “Severe Weather Forecast” predicted more heavy snow and warned that some roofs may need to be shoveled off. The contractor arrives to check out the situation; there is no real emergency but the owner is plainly motivated to hire the contractor to do building maintenance tasks right away.  On the spot, the contractor sees an opportunity to make an easy buck, writes out a contract for $999, the owner happily signs (after all, she thinks it is an emergency), and the contractor gets started right away. Either not thinking about it or thinking that a) because the cost of the job was under $1,000; or b) because the services were …

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