Understanding Exemptions from HUD’s Lead-Safe Housing Rule

The news coming out of Flint, Mich., this year has brought much attention to the harmful effects lead poisoning can have on young children. According to calculations from Columbia University’s Mailman School of Public Health, switching to the Flint River as the city’s primary water source in an attempt to save around $5 million over the course of two years has, instead, cost $458 million. Only $58 million of that is expenditure by the state on medical care and unleaded water. The bulk of the number includes the social costs: Exposure to lead leaks IQ points from children and disposes them to aggression and violence later in life, which leads to lower economic productivity, greater dependence on welfare programs, and greater costs to the criminal justice system. And the lifelong bill for each case of low-level lead poisoning is about $50,000 and 0.2 years of perfect health, based on CDC data.

Flint has already seen more than 8,000 documented exposures, while each year there are some 90,000 across the country. When it comes to low-level exposure, experts believe that drinking water is the most common source. And chewing on paint tends to cause higher lead levels.

Recently, the Center for American Progress (CAP) hosted a discussion on the impacts of lead exposure in low-income communities across the U.S. and on federal and local solutions to the problem. Panel participants, including HUD Secretary Julián Castro, framed the issue as not just an environmental or health problem, but as a housing problem and one that disproportionately impacts low-income communities and people of color.

According to CAP’s recently released report, Creating Safe and Healthy Living Environments for Low-Income Families, which examines lead poisoning and other issues that impact healthy living environments, 535,000 children are exposed to lead each year and 23 million housing units, a majority of them occupied by low-income households, contain one or more lead-based paint hazards.

HUD Secretary Julián Castro outlined steps HUD is taking to protect children from lead exposure, including developing procedures to contain lead hazards more effectively, improving lead-prevention policies, and partnering with other leaders and agencies to protect residents from lead poisoning. Secretary Castro also noted that lead assessment in federally assisted housing needed to be conducted with greater rigor. He stated that “right now Section 8 relies on a visual assessment of homes,” a woefully inadequate method of evaluating environmental health hazards in a significant share of the nation’s affordable housing stock. When asked why a lead problem still exists in 2016, Castro responded, “We have not dedicated the kind of resources that ought to be dedicated to the problem.”

While more stringent lead-paint inspection and regulations may be around the corner, it may be helpful to look at current HUD regulations to protect young children from lead-based paint hazards in assisted housing and to understand when a site may be exempt from HUD’s Lead Safe Housing Rule.

Lead Safe Housing Rule

The regulation establishes requirements that control lead-based paint hazards in such housing. It applies only to housing that was built before 1978; in that year, lead-based paint was banned nationwide for consumer use.

Like many managers of assisted sites, you may be wondering whether your site must comply with HUD’s Lead Safe Housing Rule. That rule requires certain assisted sites, depending on the amount of assistance they get, to meet lead hazard evaluation and reduction requirements by specified deadlines. These requirements include getting a risk assessment of the lead hazards at the site, taking steps to control those hazards, and notifying residents about them. The rule also requires sites to give residents certain information about lead paint when renovating units or common areas, and to use lead safe work practices when renovating.

What Sites or Units Are Exempt?

The Lead Safe Housing Rule applies to nearly all sites built before 1978, when lead paint was banned for residential use. But even if your site was built before 1978, yours may be one of a number of sites that are exempt from the rule’s requirements. HUD exempts certain sites where lead paint is unlikely to be present, as well as sites where children don’t live and aren’t expected to. The following sites and/or units are exempt from HUD’s lead safe housing rule:

Sites exclusively for the elderly or persons with disabilities, unless a child under age 6 lives at the site or is expected to live there. According to HUD, a child lives or is expected to live at a site if the majority of the child’s personal possessions are kept at the site or if the child spends more than 100 days a year at the site. Also, if you know that a resident is pregnant, HUD says this means you’re aware that a child is expected to live at the unit and the rule applies to your site. If a child lives or is expected to live at your site, then the rule applies to the unit where the child lives, any common areas serving that unit (for instance, lobbies, hallways, and stairs), and the painted surfaces on the exterior of the unit and common areas.

Zero-bedroom dwellings. According to HUD, these include efficiency apartments, studio apartments, single-room occupancy (SRO) housing, dormitories, military barracks, and individually rented rooms in residential dwellings. If you manage a site composed of zero-bedroom dwellings or units—such as an SRO—your entire site is exempt. But if your site has both zero-bedroom and larger units, the zero-bedroom units would be exempt unless a child lives in a zero-bedroom unit. You must still comply with the rule for any larger units that fall under the rule and for the common areas.

Lead-free determination by EPA. Sites that have been found to be free of lead-based paint by an inspector certified by the Environmental Protection Agency (EPA) or a state or other certification program authorized by the EPA are exempt.

Permanent lead removal. Sites from which all lead-based paint has been removed and that have passed a clearance test are exempt. To meet this exemption, a site must have all lead-based paint removed. Permanently encapsulating or enclosing lead-based paint may be enough to get clearance, but it isn’t enough to qualify for exemption, says HUD.

Unoccupied sites. Unoccupied sites are those that will remain vacant until they’re demolished.

Nonresidential sites and nonresidential portions of mixed-use sites. But entryways, hallways, corridors, passageways, and stairways that serve both residential and nonresidential uses at mixed-use sites aren’t exempt and must comply with the rule.

What Work Is Exempt?

The Lead Safe Housing Rule doesn’t apply to the following types of rehabilitation and repair work:

Painted surfaces remain undisturbed. Any rehabilitation that doesn’t disturb a painted surface (for instance, replacing carpets, light fixtures, or appliances) is exempt. HUD’s rule says disturbing a painted surface means that during the rehabilitation you scrape, sand, cut, or penetrate the painted surface in a manner that generates dust, fumes, or paint chips. If you disturb the painted surface in any way, you must comply with most of the rule’s lead hazard evaluation and reduction requirements and with the notice requirements. But the rule’s lead-safe work practices (such as protecting occupants and using specialized cleaning methods) may not apply to rehabilitation and repair work that disturbs only small amounts of surface area that fit within limits specified in the rule; and

Emergency repair needed to safeguard against “imminent danger to human life, health or safety, or to protect property from further structural damage.” This would include situations where sites have been damaged by natural disaster, fire, or collapse.