Warranty Work Must Take RRP Rules into Account

By Paul Gary & Matt Johnson, The Gary Law Group
June 28, 2010
Legal Alert

"Warning: Objects In Mirror Are Closer Than They Appear." Many window and door manufacturers are
already looking at the EPA Renovation, Repair, and Painting Rules addressing lead and necessary precautions for the work in their rearview mirror. Through the efforts of many, however, enforcement of the regulations was pushed back until October of this year. Before we get too far away from the issue, consider that this delay affords a new opportunity to train and prepare personnel.  It's worth noting that manufacturers are prime candidates for exposure under these new rules due to a seemingly unlikely source—warranty service.

Many window and door manufacturers offer in-home warranty service for their products. Usually these
service items take the form of insulating glass replacement, hardware exchanges and minor remedial issues. Consider, however, that sometimes the issue is large enough to justify replacement of a product. Many companies have warranties that leave them exposed to mandatory product replacements in the event of a wholesale window failure. With warranty terms that are broad in scope, manufacturers must be prepared to address the EPA’s lead mandates.

An example will help. Presume later this year your company gets a warranty service call for a replacement windows installed in 2004. Your service technician gets out to the home and notes a condition in the original manufacture which would normally call for replacement of the whole window. A single replacement unit is ordered, and due to either to generous labor terms in your warranty or the occasional “customer accommodation,” the window is installed by your technician. The customer is satisfied and everything seems fine.

One problem—the home was built in 1976 and your service technician just failed to observe any of the mandatory EPA RRP rules. Your company is now subject to statutory liability and penalties. This exposure is real and the scenario is not remote. Every day window and door companies exercise warranty work on homes throughout the United States without knowing the year of construction. By disturbing a significant area of painted surfaced or replacing a window, manufacturers subject themselves to exposure under the EPA’s mandates.

Window replacement definitely covered
In fact, and likely out of caution, the EPA has mandated that any window replacement—regardless of whether it disturbs painted surfaces—is covered by the notice, work, protection and cleaning requirements of the rules. The impact of that general pronouncement is broad and far reaching for manufacturers. “Easy money” as our legal opponents would say.

So what to do? Evaluate your warranty. Limiting warranty exposure may be the first step in addressing future issues. Training of personnel is also a key item. Identification of when a home was built may become a standard precondition before going to any home. And, if you perform the warranty work yourself, the EPA’s rules must be observed in full. If you subcontract the work to someone else, be sure that they are in compliance so that you are not later subject to agency-violator arguments. Regardless, education about the RRP rules is essential so that when you look in the mirror, unanticipated issues are not sneaking up.

This Legal Alert is presented by Paul Gary and Matt Johnson, attorneys at the Gary Law Group based in Portland, Ore. The firm specializes in legal services for the window and door industry. More information is available at www.prgarylaw.com.  Questions about this article and other legal issues may be sent to paul@prgarylaw.com.