May 18, 2022

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EPA Announces It Will Enforce Lead-Based Paint Safety Requirements Against Property Managers – Environment

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United States:

EPA Announces It Will Enforce Lead-Based Paint Safety Requirements Against Property Managers


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Under proposed revised EPA guidance announced on November 5,
2021, Property Management Companies (PMCs) may be subject to EPA
enforcement under the Toxic Substances Control Act (TSCA) and the
Lead Renovation, Repair and Painting (RRP) rule for improper
lead-based paint renovations, repairs, or painting performed by a
contractor on pre-1978 buildings containing target housing1 or
child-occupied facilities2. Additionally, PMCs must now obtain EPA
certification even if the work is exclusively performed by a
certified contractor.

Specifically, the EPA proposes removing two published responses
to Frequently Asked Questions (FAQs) which had previously provided
assurance to PMCs that: (1) a PMC did not need to obtain firm
certification for itself or renovator certification for an employee
if none of its employees “do the work” of the renovation;
and (2) if a PMC hires a certified firm to perform a renovation and
the firm violates the RRP rule, the PMC would not be the target of
EPA enforcement. These two limitations on liability applied when
the contractor was completing the actual lead-paint work and the
PMC was merely providing clerical services. With the withdrawal of
the two FAQs, the EPA announced that it would treat PMCs as it
would any other entity, according to the broadly applicable
language of the RRP rule: “That no firm may perform, offer, or
claim to perform renovations without certification from EPA in
target housing or child-occupied facilities (unless the renovation
qualifies for a specified exception).” See, e.g., 40
CFR 745.81(a)(2)(ii).

Therefore, the changes expose these uncertified PMCs to new
enforcement liabilities, even though no changes were made to any
existing statute or regulation.

The announced revisions to the enforcement guidance were
published in the Federal Register on November 4, 2021 and,
according to the EPA, will “improve compliance and strengthen
enforcement of the lead-based paint RRP Rule.”

EPA intends to make the changes effective on March 21, 2022 and
has requested comments by December 6, 2021 to identify any relevant
information that could affect the EPA’s decision to withdraw
these two FAQs. Following the comment period, the EPA will post a
memorandum stating whether the withdrawal will take effect as
planned. Further, EPA announced that the PMCs should use the time
before the planned withdrawal becomes effective to obtain any
needed certification under the Lead RRP rule; therefore, no grace
period is expected following the March 21, 2022 planned effective
date.

Footnotes

1
“Target housing” is any housing constructed prior to
1978, except housing for the elderly or persons with disabilities
(unless any child who is less than 6 years of age resides or is
expected to reside in such housing) or any 0-bedroom dwelling.
See 40 CFR § 745.103.

2
“Child-occupied facility” is a building, or a portion of
a building, constructed prior to 1978, visited regularly by the
same child, under six years of age, on at least two different days
within any week (Sunday through Saturday period), provided that
each day’s visit lasts at least three hours and the combined
weekly visits last at least six hours, and the combined annual
visits last at least 60 hours. See 40 CFR §
745.83.

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