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Simple mistakes cause big (and expensive) problems

Stiff penalties result when lead-based paint forms incomplete

The Mississippi Association of Realtors (MAR) is warning its members to be particularly careful to dot every “i” and cross every “t” on the lead-based paint forms that are required for real estate agents to use to disclose to clients when purchasing or leasing homes constructed prior to 1978 that may contain lead-based paint.

According to MAR, in August a Mississippi broker was fined more than $6,000 “for minor omissions to lead paint forms discovered during a surprise Environmental Protection Agency audit of her files.”

“And that amount was negotiated down from a whopping original fine amount of $28,000,” says Quentin Whitwell, MAR vice-president of public policy. “The EPA is apparently targeting Mississippi brokers for such audits, which are authorized under the federal lead-based paint law.”

Lead may cause a range of health effects ranging from behavioral problems and learning disabilities, and even seizures and death. Children under the age of six are the most susceptible.

If it’s in your files…

Whitwell said real estate agents know that a lead-based paint form must be completed for the sale or lease of any home or structure built prior to 1978. But he said what they may not know is that any mistake, no matter how insignificant — an omitted initial or date, for instance — can result in the levying of a substantial fine from the EPA against the Realtor. And get this: it doesn’t matter if your firm made the mistake or not. If it’s in your files, you’re fair game.

The EPA denies that any fines are levied for minor paperwork errors.

Liz Wilde, regional lead coordinator for EPA, Region IV, said just about any paperwork violation is not minor. “We don’t pursue unimportant violations,” she said.
Wilde said she didn’t know what case MAR is referring to and wouldn’t be able to comment on an active case. But she said Mississippi is not being targeted for the inspections. In the past fiscal year, EPA has conducted 161 inspections across the eight states covered in Region 4.

“In no way were we picking out Mississippi,” Wilde said. “We are interested in compliance across our entire eight-state region.”

Back in ‘enforcement mode’

Wilde said for the past five years the EPA didn’t do any enforcement actions, and instead had “a very robust client assistance program” targeting education outreach as opposed to enforcement. The regulated community was provided with education via mailings and other activities.

“Now we are in the enforcement mode across the region,” she said.

Areas selected for inspections are based on how many lead-poisoned children there are, and how much pre-1950s housing is in the area. Although lead paint was outlawed in 1978, Wilde said its greatest use was prior to 1950. Any building constructed prior to 1978 could have lead paint in it, but the largest percentage of problem buildings were constructed before 1950.

Wilde said in the case cited by MAR, if the broker was originally fined $28,000 and that was reduced to $6,000, “I think that was extraordinarily flexible of us. If you don’t have documentation you informed people buying a house of your knowledge of its lead-based paint status, then people don’t get informed. Not having that documentation is not just a minor issue. That is what proves you did what you were supposed to do under the act. This paperwork is all we have to document the actual compliance.”

While there has been an enormous improvement in the past 10 years in the number of children poisoned by lead in the U.S., Wilde said it is still a serious issue because lead exposure can have a dramatic and permanent impact on children’s intelligence.

“Each microgram per deciliter of blood may decrease a child’s intelligence by two IQ points,” Wilde said. “And that is a permanent problem. The problem with lead in children is that until children are five or six years old, they absorb lead at greater levels than adults, and that lead replaces calcium in the body. The very poor are the most vulnerable. Not only are they more likely to have lead in the house, but their poor nutrition makes medical problems worse. It makes lead more easily absorbed.”

Whitwell maintains the violations were minor in the case cited and a couple of others that have been brought to his attention.

“None of these showed any real estate broker didn’t fill out forms or disclose to clients forms that needed to be filed out,” he said. “They were minor violations, such as no initial in a spot, or a date not put in one location. I am certainly a proponent of following the law, but I think the regulations as they stand and the manner of enforcement is certainly ridiculously stringent.

“In our situation, the best we can do is simply tell our brokers to cooperate, and hope that they get a reduced fine like the person here in Mississippi did. We have asked our congressional leaders to see if there is anything they can do because it seems to me that penalties are too stiff. We’re not in any way saying that disclosure of lead-based paint is a bad thing. We certainly want to cooperate with EPA, and we want consumers to be aware of any problems they might face. Our concern is the ability EPA has to produce these stiff fines really does more harm than good. Realtors out there trying to help who have actually filed out forms are getting penalized where if EPA wasn’t spending all the time nitpicking, it could go to a lot of offices that don’t have any forms. They could find more important problems out there.”

Whitwell recommends carefully scrutinizing the lead-based paint forms, and having a cooperative spirit with the EPA if they come calling as it could result in the reduction of fine amounts. (If anyone experiences a visit from the EPA, he’d like to hear about it. He can be contacted at qwhitwell@msrealtors.org or at (601) 932-5241, extension 28.)

Knowing the law

The Mississippi Department of Environmental Quality (MDEQ) also has a lead-based paint program that certifies lead-based paint inspectors, workers, supervisors and firms, and inspects child-occupied facilities such as day care centers and kindergartens. Johnny Beason, administrator of MDEQ’s lead based paint program, said there still may not be widespread knowledge of the problems with lead paint, particularly among painters.

“The average painter doesn’t know anything about the regulations,” Beason said. “They are going out and scraping all the paint away, not realizing they are exposing themselves, their home and any children or grandchildren in the home.”

Beason said lead can become airborne and be inhaled if it is cracking and peeling, or is disturbed for some reason. If lead paint is not removed properly, it can contaminate the entire home.

In addition to problems in children, lead in adults can lead to high blood pressure and reproductive problems.
Beason said if anyone has questions about a pre-1978 structure, call him. “If you going to error, error on the side of caution,” he said. “If you are going to be disturbing paint, call me. If you own your home, you can do whatever you want. But if you are going to hire someone, then you must use a certified inspector or workers.

To contact Beason or get a copy of the current list of certified inspectors, send an e-mail to johnny_beason@deq.state.ms.us or call (601) 961-5595. For information on MDEQ lead certification, call Virginia Rickels at (601) 961-5777.

More information about lead based paint is available at the Web sites www.deq.state.ms.us or www.cdc.gov, www.epa.gov/lead.

Contact MBJ contributing writer Becky Gillette at bgillette@bellsouth.net.

About Becky Gillette

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