HUD Notice Clarifies EPA and HUD Requirements for Lead-Based Paint

On July 29, HUD posted Notice PIH 2011-44 entitled “Guidance on EPA's Lead-Based Paint Renovation, Repair and Painting (RRP) Rule, HUD's Lead Safe Housing Rule, and the EPA-HUD Lead Disclosure Rule.” The notice provides guidance to public housing authorities (PHAs) and Housing Choice Voucher site owners on complying with the various lead paint regulations that apply to federally assisted housing.

The notice summarizes the regulations pertaining to lead-based paint under the EPA's Renovation, Repair and Painting (RRP) Rule and HUD's Lead Safe Housing Rule (LSHR) and the Lead Disclosure Rule (LDR). Of the three sets of rules, the EPA's RRP Rule was the most recently enacted. The notice also includes a description of EPA enforcement and fines, and provides examples of possible compliance issues that PHAs and owners should work to avoid.

Existing Federal Regulations

The LSHR is the primary regulation of lead-based paint-related activity for assisted housing. The Office of Public and Indian Housing (PIH) and the Office of Healthy Homes and Lead Hazard Control (OHHLHC) have issued detailed guidance on the LSHR and a toolkit for the Housing Choice Voucher program, which can be found at www.hud.gov/offices/adm/hudclips/guidebooks/PIH-2007-101/index.cfm.

In addition to the LSHR, owners are required to comply with the LDR. The LDR applies to federally assisted and private housing built before 1978, with certain exceptions. Under the LDR, the owner of a property is required to inform tenants about the hazard of lead-based paint (Lead Warning Statement), and make a disclosure statement that advises the resident of the presence of any known lead-based paint and or lead-based paint hazards in the unit, common areas servicing the unit, and exterior areas. Alternatively, the disclosure must indicate that the owner has no knowledge of the presence of any lead-based paint and/or lead-based paint hazards.

The statement must also list any records or reports available to the owner, and verification that the records or reports have been made available to the resident. The owner of a property must also provide to the residents an EPA-approved brochure titled “Protect Your Family from Lead in Your Home.” For the Housing Choice Voucher program, the housing authority is required to take specific steps to ensure that the owner abides by the LDR.

In addition to the LSHR, the EPA has issued final regulations for the renovation of pre-1978 housing. The RRP Rule requires owners and managers of assisted housing and other buildings built before 1978 to follow lead-safe work practices when disturbing a painted surface where lead may be present. The rule covers painting work involving sanding, demolition, renovation, or repair.

The new rule requires individual renovators and contractors to complete a state- or EPA-accredited course and obtain certification. It also covers staff members who do work that disturb lead-based paint. The rule also requires owners and management companies that employ workers who may disturb lead paint to have a company license issued by the EPA. In the past, the EPA rules for lead-based paint only governed activities for abatement. Workers who already have been trained under a state or city lead paint program and who already have a Lead Safe Work Practices Certificate can be grandfathered in by taking a four-hour refresher course given by a certified training firm.

According to the RRP Rule, when you hire a contractor to do the work, the contractor must notify your residents by giving them the HUD handout “Renovate Right” before disturbing any painted areas. If your employees are doing the work, then you should distribute the handout yourself. In addition, you must have your residents sign a pre-renovation disclosure form. Online training on the EPA's RRP Rule's impact on HUD-funded lead-based paint activities is available at http://webcast.hud.gov/508/index.php?search=lead#.

According to the notice, owners should continue to comply with the LSHR and LDR in addition to the RRP Rule. While there's an overlap in the requirements, the LSHR is generally more stringent than the EPA requirements for paint testing, worker certification, worksite clearance, and management of units where a child with lead poisoning has been identified.

Whenever more than one federal rule applies, the most protective section applies. Additionally, if state or local law, ordinance, code, or regulation defines lead-based paint differently than the federal definition, the more protective definition must be followed in that jurisdiction.

Some states operate their own program for training and certification under the RRP Rule. Contractors and trainers working in those states must contact the state to find out more about training and certification requirements. A list of those states can be found at www.epa.gov/lead/pubs/renovation.htm#authorized, or by contacting your local EPA office.

Our chart, Differences Between HUD LSHR and EPA RRP Regulations, provides a comparison of the requirements.

EPA Enforcement and Fines

In August 2010, the EPA issued its final “Consolidated Enforcement Response and Penalty Policy for the Pre-Renovation Education Rule; Renovation, Repair and Painting Rule; and Lead-Based Paint Activities Rule.” Under this policy, the EPA can collect up to $37,500 per violation.

EPA enforcement cases under its lead-based paint regulations may include multiple violations, especially at multifamily sites where violations are assessed on a per-unit basis.

If the EPA requests a record inspection for the RRP Rule, contact your counsel (in-house or outside counsel) regarding the request. OHHLHC will provide technical support for RRP inquiries. EPA inspections are voluntary; however, the EPA can issue a subpoena to compel record disclosure. Our Model Checklist: Complying with the RRP Rule and the Lead Safe Housing Rule can assist in compliance, and includes the types of documentation that an owner may be asked to produce during an EPA inspection.

Possible Compliance Issues

Owners should take care to ensure compliance with the HUD/EPA LDR, the HUD LSHR, and the EPA RRP Rule. Some examples of possible compliance issues include:

Disclosure. Under the LDR, owners are required to provide their residents with a brochure detailing the effects of lead poisoning, and disclose all known lead hazards at the site. The brochure was updated in 2010. Brochures created before the update should be destroyed. A copy of the latest version of the pamphlet, the EPA's “Protect Your Family from Lead in Your Home” as well as required specific disclosure language and documentation that supersedes Handbook 7487.1 is available at www.hud.gov/offices/lead/enforcement/disclosure.cfm.

Keeping records. Owners participating in the Housing Choice Voucher program must maintain lead paint disclosure records and disclose all known information about lead paint in units and common areas where testing and lead hazard control work has been performed. Owners must also maintain all records regarding lead paint and make them available to residents as part of the disclosure process, as well as keeping records of the disclosure process for three years.

Complying with HQS requirements. If a unit is found to be out of compliance with Housing Quality Standards (HQS) because of a lead paint inspection prior to occupancy by a child under 6 or due to a risk assessment of the unit because a child living in the unit was reported to have an environmental blood lead level, the unit is not in compliance with HQS until the lead hazard is cleared. This is true whether a child will be living in the unit or not.

Familial discrimination. Owners cannot exclude families with young children from participating in housing programs because of the lead-based paint requirements, or require parents to provide information about child blood lead levels before offering housing. Policies of this type are a violation of the Fair Housing Act and medical privacy standards.

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