On April 22, 2008, the EPA issued a formal rule requiring the use of lead-safe practices and other actions aimed at preventing lead poisoning. Beginning in April of 2010, any contractor performing work that might disturb lead-based paint in buildings built before 1978 must be certified and follow specific practices to prevent lead contamination. While nearly all contractors are aware of this rule, due to the expense of compliance some may try to bide their time, waiting for the rule to be changed, or go away altogether… but enforcement is ramping up, and the only prudent course of action is to take the steps necessary to comply. It is our hope that all of our clients are already in compliance, so the next question is this: What do you do if you receive a request for RRP information from the EPA?
When faced with questions about RRP, we here at Mason & Mason turn to our good friend Shawn McCadden, the RRP Specialist. Shawn recently shared some information he had gleaned from Attorney Ann E. Viner regarding this very topic. She offers the following practical tips to keep in mind when you receive a request for info from any government agency regarding the RRP Rule:
- Don’t respond to verbal requests: It is important to get all requests in writing, so that all parties clearly understand the scope of the information sought and the time period covered by the request. Without a written request, you risk being accused of failing to fully comply with a verbal request that you may have simply misunderstood. Asking the government to put its inquiry in writing is within your rights.
- Determine if the government has authority to seek the information requested: Although a written request for information should specify the statutory authority for the request, don’t assume that the agency actually has the cited authority. Knowing the source of the government’s authority for the request, as well as determining the applicability of the request to your business, is imperative in both limiting the scope of your response and protecting your business interests with customers and other parties that may be affected by the request.
- Voluntary compliance versus litigation: Your business should be aware of the pros and cons of voluntary compliance versus requiring the government to follow more formal procedures such as issuing a subpoena or filing a lawsuit. Generally, cooperation is the better course at the early stages of an investigation. On the flip side, refusing to voluntarily comply with a governmental request may subject you to higher scrutiny and or administrative penalties. Of course, cooperation is not always an option, so understanding the risks of fighting with the government is essential at the outset.
- Assume your company is a target and involve counsel early in the process: Regardless of the apparent target of the government’s inquiry, assume that your business is, in fact, under investigation and may be subject to fines, penalties or otherwise embroiled in a civil or criminal enforcement action. An experienced environmental attorney can help advise your business concerning its rights and responsibilities.
- Be honest: As we all learned in childhood, honesty is the best policy. Handling the request in an inappropriate manner could result in claims of obstruction of justice, interfering with investigations, or other types of administrative and civil violations.
To read the entire article by Anne, visit Much Shelist. As always, feel free to contact us with any questions you might have. We’re here for you.