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Yes, you can deliver the EPA’s “Protect Your Family from Lead in Your Home” pamphlet by email. Just keep in mind that delivery of the lead paint pamphlet is the very first issue that the EPA auditor will look at. Why? Because either you can prove pamphlet delivery in a timely manner, or you can’t. This is the easiest issue for them to prove up, as opposed to getting into an analysis of whether or not we’ve been properly conducting lead paint testing and performing lead safe work practices.
It’s not an issue to be taken lightly — keep in mind that each violation can run you a maximum fine of $37,500. A few years back, Home Depot got hit with a $20,750,000 penalty for both Home Depot and its SFI (sell, furnish and install) dealers’ failure to follow lead safe work practices, including delivery of the pamphlet.
The concern is that the EPA has come out and opined that while you can deliver the lead paint pamphlet electronically, you must do so in accordance with either the state-based Uniform Electronic Transaction Act (UETA) or the Federal Electronic Signatures in Global and National Commerce Act (ESIGN). That’s pretty hard to do because it generally would require the consumer to first agree to a specific disclosure about electronic transactions (the same one that we use in e-closings). In other words, you would have to utilize some sort of electronic closing process, such as DocuSign, to deliver the pamphlet. We have structured such systems — it simply requires a two-step process for the customer to acknowledge the email they are receiving, and then to receive the actual pamphlet as an attachment. But it is a bit complex, and it does require us to pay for the e-closing system, then utilize and track the delivery of the pamphlet as if it were an actual electronic contractual closing.
That noted, we can tell you that in having defended literally hundreds of lead paint audits at the state and federal level for local, regional, and national clients, the fact of the matter is that this issue has never been raised against a client. Even the most problematic EPA auditor has not questioned if the electronic delivery of the pamphlet was in proper compliance with UETA or ESIGN. Still, the risk obviously is out there.
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