Background
Howland Company, LLC and its owner John Evan (Petitioners) are certified lead abatement contractors performing work across several Pennsylvania counties. Between August 2022 and August 2023, the Department of Labor and Industry’s Bureau of Occupational and Industrial Safety (Bureau) issued three orders to show cause (OSCs) against Petitioners following inspections of five separate job sites in McKees Rocks, New Castle, and Bessemer. The Bureau alleged 17 violations of the Lead Certification Act (Act), 35 P.S. §§ 5901–5916, and related state and federal regulations—including uncertified workers performing abatement without licenses, failure to have a supervisor present, missing personal protective equipment (PPE), improper cleaning techniques, inadequate containment, and failure to maintain site access logs and lead hazard signage.
After a consolidated two-day evidentiary hearing in February 2024, Hearing Officer Peter Kovach sustained 14 of the 17 alleged violations. Treating all counts as first offenses because no prior final orders or settlement agreements had been entered, the Hearing Officer recommended a civil penalty of $14,000 ($1,000 per sustained violation) and three-year suspensions of Petitioners’ lead abatement licenses and certifications—reduced from the five-year suspensions and $49,000 penalty the Bureau had sought. The Department of Labor and Industry’s Secretary adopted the proposed adjudication in full on January 22, 2025. Petitioners sought review in the Commonwealth Court on two grounds: (1) that the Bureau failed to prove any violations because it did not introduce written risk assessment reports for each job site, and (2) that three-year suspensions were excessive for what they characterized as de minimis first offenses.
The Court’s Holding
A unanimous three-judge panel affirmed. On the first issue, the court squarely rejected the argument that the Bureau must prove actual lead presence at each site or introduce risk assessment reports to establish violations. The Lead Certification Act’s definition of “lead-based paint activities” expressly encompasses risk assessment, inspection, and identification of lead-based paint—activities designed to determine whether lead exists, not activities that presuppose its presence. Requiring proof of lead before any violation could be found would, in the court’s words, “defeat entirely the preventative purpose” of the Act’s safety requirements. The court further held that inspector testimony, site investigation reports, and photographs were sufficient, by a preponderance of the evidence, to establish that lead abatement activities had commenced. The Department’s reasoning was compelling: the Bureau received and reviewed written work notifications from Petitioners before each inspection—notifications that, under the Act, must include a risk assessment report. The presence of Petitioners’ workers, equipment, and containment setup at each site corroborated that abatement work had begun.
On the second issue, the court found no abuse of discretion in the three-year suspensions. The Department expressly considered Petitioners’ mitigating evidence—their compliance improvements and successful completion of more than 100 lead abatement projects—but concluded that those factors were outweighed by the severity and pattern of the violations: 14 violations across five properties over 16.5 months; prior written and verbal Bureau warnings that went unheeded; persistent failures to protect workers from lead exposure (missing PPE, expired certifications) and to protect building occupants (improper containment, inadequate cleaning); and a stop-work order at one Park Avenue site that required third-party mitigation to remove lead hazards from occupants’ personal belongings before abatement could resume. The court emphasized that it may not substitute its own judgment for the agency’s, and that the record supported the Department’s conclusion that the violations were not de minimis but instead posed grave, ongoing risks to public health.
Key Takeaways
- Under the Lead Certification Act, 35 P.S. §§ 5901–5916, the Bureau does not need to prove that lead was actually present at a job site to sustain violations; the Act’s requirements apply from the commencement of any “lead-based paint activity,” including risk assessment and inspection—activities that occur before lead is confirmed.
- Risk assessment reports are not the exclusive proof of lead-based paint activity; inspector testimony, site photographs, and investigation reports constitute sufficient evidence to prove by a preponderance that abatement work had commenced.
- A three-year suspension of lead abatement licenses is not an abuse of discretion where a contractor committed 14 violations across five sites over 16 months, ignored repeated Bureau warnings, and created conditions requiring a stop-work order and occupant-property remediation.
- Prior verbal and written warnings from the Bureau are properly considered as aggravating factors in determining suspension length, even when the violations technically constitute first offenses under the Act’s penalty enhancement provisions.
Why It Matters
For Pennsylvania lead abatement contractors, Howland makes clear that compliance obligations under the Lead Certification Act are not contingent on confirming lead’s presence at a worksite. From the moment any lead-based paint activity begins—whether that is pre-abatement risk assessment or the abatement work itself—the requirements for certified workers, proper PPE, containment, hazard signage, and supervisory presence are all in effect and enforceable. The absence of a risk assessment report in the Bureau’s evidentiary record does not vitiate a violation.
The case also illustrates the serious consequences of ignoring Bureau communications. Prior verbal and written warnings that go unheeded elevate what might otherwise be first-offense violations into the foundation for substantial suspensions, even when the contractor can point to a largely clean track record on other projects. Pennsylvania counsel advising certified lead abatement companies should treat any Bureau inspector communication—whether a formal letter or an informal on-site comment—as a compliance checkpoint that, if disregarded, will support longer suspensions and higher penalties in future enforcement proceedings.