Vermont’s New Lead Control Regulations

On October 1, 2022, the Vermont Health Department adopted new regulations concerning lead in pre-1978 housing and childcare facilities. This page will focus on the rental of housing (apartments, owner occupied duplexes, condominiums, Accessory Dwelling Units) in these buildings. Together these units are defined as Rental Target Housing. Vermont’s new Lead Paint Regulations impose new and much higher expenses on Vermont’s small landlords who operate Rental Target Housing. Please consider joining with us to change the new Regulations to reduce the financial burden on those Landlords who are typically providing the bulk of the most affordable, market rate workforce housing in the State.

What’s Old?
Small landlords of Rental Target Housing used to be able to take a 2 hour Essential Maintenance Practices (EMP) course in lead safety, pass a test to be EMP certified, annually inspect their properties and file an EMP inspection report with the State. If your inspection discovered any deteriorated surfaces, you were required to use lead-safe work practices to make repairs, repaint walls, etc. If you repainted an apartment between tenants, you were required to use lead-safe work practices.

What’s New?
The EMP certification has been replaced with Inspection, Repair and Cleaning (IRC) certification. The 2 hour training class and test are the same. You can still conduct annual inspections and file the new IRC reports with the State. But you can no longer repair, repaint or disturb any surface in the rental unit of more than 1 square foot whether the unit is occupied or not. In order to perform such maintenance on your rental unit, you must now obtain both a Repair, Renovation, Painting and Maintenance (RRPM) Firm license and a RRPM Supervisor license as well as professional liability insurance:

In order to repaint/maintain your own rental unit, you must now:

  1. Take an 8-hour training class (cost $250-$300)
  2. Pass a written test
  3. Pay a $300 RRPM Firm licensing fee (5 yrs);
  4. Pay an annual $50 RRPM Supervisor licensing fee;
  5. Obtain professional liability painter’s insurance with at least $300,000 in liability coverage (cost ~$2,500 /yr – if you can get it)

With respect to additional training and passing a written test (items 1 & 2) every 5 years, most people have no problem with that as it is part of keeping both you and your tenants safer.

The other requirements of the new Regulation are expensive, unnecessary and will cause even more upward pressure on rents that must be charged to maintain a quality rental unit and a reasonable return on investment.

The RRPM Firm and Supervisor licensing fees are not required by Federal or State law for landlords who only work on their own properties, and do not hold themselves out for hire to others. Neither is the minimum professional liability insurance. Both the licensing fees and the liability insurance requirements are waived for owner operated childcare facilities that are subject to the same Federal Regulations as Rental Target Housing.

With regard to the mandatory liability insurance, your conventional general/umbrella property insurance policy most likely does not provide the required professional painters liability insurance coverage mandated by the new Regulation. You may also find that small landlords are unable to purchase professional painters liability insurance unless they are in fact, full time professional painters. As you may know, Vermont law exempts owners of Rental housing from lead poisoning liability if they complete the EMP (now IRC) annual inspection, cleaning and lead-safe work practices. So the new Regulation mandates that small landlords who maintain their own buildings purchase insurance that is not available to them to insure against liability that they are already exempt from.

If you want to paint the interior or exterior of your rental property your other option is to hire a professional painter who has the necessary insurance and RRPM licenses. Good Luck! As of January 1, 2023, you had the choice of less than 35 licensed contractors statewide licensed to perform the work. Those authorized to perform the work numbered only 7 in all of Chittenden County, 2 in Addison County and 2 in Franklin County. There were no licensed contractors in Grand Isle, Orange or Windsor Counties. Washington County has one: Capstone Community Action, which is not available for hire to private landlords. One of the two contractors in Addison County is Middlebury College – again, not offering services to the general public. Thirty-five licensed providers for 60,000 Rental Target Housing units is only one contractor for every 1,700 rental units.

Why did the State decide to impose these costs and mandates on small Landlords? According to the Health Department – it is just another “cost of doing business.” In fact, they appear to be completely tone deaf to the notion of attempting to keep market rate workforce housing reasonably affordable.

What can you do?

Contact your Legislator(s)

A bill (H.184) has been introduced in the Vermont House seeking to provide small residential landlords who do not hold themselves out for hire to perform RRPM activities with the same exemption from licensure and mandatory insurance that owner operated childcare facilities enjoy. The bill has been sent to the House Committee on General and Housing. The members of that committee are: Thomas Stevens (Chair) – Waterbury, Robin Chesnut-Tangerman – Middletown Springs, Kathleen James – Manchester, Ashley Bartley – Fairfax, Elizabeth Burrows – West Windsor , Caleb Elder – Starksboro, Mary Howard – Rutland, Emilie Krasnow – South Burlington, Dennis LaBounty – Lyndon, Larry Labor – Morgan, Saudia LaMont – Morristown & Joseph Parsons – Newbury. If you know or are represented by any of these committee members, please reach out to them and ask them to support passing the bill. You can always leave a message for them at the Statehouse: 802 828-2228.

Meet with your Legislator(s).

Your Senators and Representatives are much more interested in hearing from their actual constituents than a lobbyist. If an additional $3,000 a year (license fees and professional insurance) would have an impact on you, let them know in person, when they are back home for the weekend or if they attend a public event in the community. A short OpEd that explains the situation can be found HERE. Give it to them and ask them for support. If you are meeting with a Legislator and would like someone to join you to provide more robust back up on the issue, please reach out to Alan Bjerke at the contacts listed below.

Call the Health Commissioner
Dr Mark Levine has been asked to revisit and modify the new Regulation to reduce the costs for small landlords to provide reasonably priced rental housing. So far, he has not been willing to even meet with us. You can find our detailed letter to him HERE. His office phone number is: 802 863-7280. Call and ask him to support reducing costs on small landlords and help keep workforce rental housing more affordable by treating rental housing the same as childcare.

Call the Governor
The Governor’s office has a constituent hotline: 802 828-3333. Leave him a message that his Health Department’s new Regulation is hurting small landlords and affordable rental housing. Ask him to have the Health Commissioner change the policy to eliminate the high costs put on small landlords by supporting H.184.

Watch this space.
As new developments occur we will post about them here. Check in from time to time to stay abreast of the latest news on this issue.

Click Here to see Alan’s presentation to the Vermont Landlords Association on H.184 recorded on February 23, 2023.

On March 23, 2023, the House General & Housing Committee heard testimony from Alan & the Department of Health on H.184. You may see Alan’s testimony HERE. To see the testimony of David Englander from the Department of Health, you can rewind that same video to the very beginning. In connection with that same testimony, the Committee received over 30 letters and 80 e-mails supporting H.184 and asking the committee to move forward with the legislation. You may find those letters and e-mails to the committee HERE. Note that the e-mails are not individually listed, but can be found instead in the two files named Connolly, Hebeler et. al. and Kennedy, Lovejoy et. al.

On April 27th, the House General & Housing Committee voted unanimously to propose an amendment to S.100 which would solve one of the two principal objectives of H.184. The amendment would eliminate the requirement that landlords working on their own properties obtain specialty contractor insurance as a requirement of licensure. Despite the urging of several members, the Committee did not address the 2 licensing fees being charged to landlords. The Committee’s proposal of amendment is HERE. The section that addresses the issues in H.184 is in Section 46 of that amendment. While there is still an amendment being circulated to eliminate the licensing fees on landlords, it is probably not going to make it into the final bill because of the limitations of time remaining in this year’s session.

At the end of the 2023 Session, the Legislature adopted one minor change to the Lead Control Statute in S.100 which eliminated the requirements that rental property owners must obtain professional liability insurance, after the Health Department acknowledged that such insurance was not commercially available to landlords. In addition, a settlement agreement was reached with the Health Department that the Department would consider re-characterizing permission for rental property owners to be certified, instead of licensed. The characterization is important because most insurance policies that cover landlords exclude coverage for activities that can only be performed by a licensed professional.

The Health Department originally circulated a proposed amendment to the regulation which created a new Category of “Certified Rental Property Owners”, but in their most recent draft, reverted to “Licensed Rental Property Owners.” In reviewing the original proposed amendment, a group of us sent a memo to the Department and held a meeting with them. In a follow up e-mail, the Department rejected our requests for modifications to the amended regulation.

We specifically asked that the Department eliminate the licensing fees for rental property owners. We noted that Shayla Livingston from the Health Department explicitly testified in connection with the enabling legislation in 2018 that rental property owners would not have to pay any licensing fees under the regulations to be adopted. Shayla’s testimony is transcribed HERE and the audio from the hearing is HERE. In addition, Katie McLinn, legislative counsel to the House Committee that originally moved the enabling legislation testified that under the terms of the legislation, landlords and childcare facilities would not be required to be licensed to work on their own properties. Katie’s testimony is transcribed HERE and the audio from the hearing is HERE.

We also asked that the Department consider allowing Rental Property Owners to train and supervise other owners of the property as is allowed for childcare operators; a less expensive alternative for Component Exclusion; and, to allow dust collecting power sanders to be used when connected to a HEPA vacuum as a matter of course, instead of paying for a separate permit each time – – as is allowed under the EPA regulations. A copy of our Memo to the Department is HERE.

The Department is holding a public hearing and soliciting comments on the proposed amendments. The public hearing is on Tuesday, February 20th at 3 PM in Waterbury. You may also appear by telephone. Written comments can be submitted until February 27th by sending them to Meg.McCarthy@vermont.gov.

Any Questions or for support framing your public comments, please call: Alan Bjerke at 802 864-9128 or reach out by e-mail at AlanB72@aol.com.