Changes to the EPA’s Lead-Based Paint Rules Make More Residential Housing Providers Subject to Lead Base Paint Certification Requirements
By Sean Tropea
Buildings constructed prior to 1978 have a higher likelihood of containing lead-based paint. Therefore, repair, renovation, and/or painting of such buildings may present a risk of releasing hazardous lead dust and consequently numerous legal implications in the residential rental context.
For those who manage properties containing lead-based paint, having a general understanding of the Environmental Protection Agency’s (EPA) Lead Renovation, Repair and Painting (RRP) Rule can provide valuable protections against lawsuits from residents and government fines.
This article focuses on some of the more recent changes made to the EPA’s RRP and provides additional references for further review.
Who are affected by these changes?
In 2022, the EPA made some noteworthy changes to clarify RRP compliance responsibilities of property managers and property management companies (collectively “PMCs”). Therefore, PMCs, those employed by PMCs, and those who work with PMCs on renovation, repair, and/or painting, among others, are affected by these changes.
The EPA has begun auditing and fining PMC’s nationwide who fail to observe the RRP.
Why the changes?
In general, the RRP broadly applies to renovation, repair, and/or painting activities that disturb painted surfaces in applicable buildings constructed prior to 1978. Additionally, no “firm” may perform, offer, or claim to perform renovations for compensation without certification from the EPA, unless an exception applies.
Prior to the 2022 changes, the phrasing / content of certain Frequently Asked Questions (“FQs”) on the EPA’s website had, in a nutshell, provided for an understanding that (1) a PMC was not required to obtain firm certification for itself or renovator certification for its employee(s) if no employees “do the work” of the renovation, and (2) if a PMC hires a certified firm to “do the work” of the renovation but the firm violates the RRP, that only the firm (not the PMC) would likely be held responsible.
Per the EPA, this prior phrasing / content made it unclear whether PMCs would be responsible for RRP violations under certain circumstances, resulting in a level of non-compliance from PMCs that was not anticipated by the EPA at the time the RRP (and/or its FQs) were originally implemented. The EPA commented that it “is cognizant that PMCs relying on the EPA’s PMC FQs may have declined to obtain RRP certification themselves or ensure the RRP compliance of contractors they hired.”
What are the changes?
In this “change,” the EPA removed the above-referenced FQs and clarified that the EPA will assess RRP compliance by PMCs just as it would for any other “firm” and that it will evaluate compliance based on each case’s individual facts. Presumably, the EPA’s intent is to clarify and signal to PMCs that the EPA intends to hold both PMCs and the contractors they hire (referred to as the “firm” above) responsible for compliance if the facts indicate that both performed or offered to “do the work” for compensation.
This means that any individual or entity (including PMCs) will be subject to RRP compliance when performing or offering to perform renovation, repair, and/or painting activities that disturb painted surfaces in applicable buildings constructed prior to 1978, and therefore must be certified.
What now?
PMCs who find that these changes apply to them may consider conservatively observing their potential impact on communities they manage by taking precautionary action such as auditing the extent they may be deemed to have performed or offered to “do the work” for compensation as discussed above, and whether they and/or their contractors are properly certified.
In summary, the EPA has acknowledged and begun to patch up any holes in the prior phrasing / content of the PMC FQs, which will presumably make it more difficult to avoid responsibility for RRP violations.
For further inquiries regarding interpretation/understanding of the RRP, recent changes to the EPA’s PMC FQs, and/or additional options/implications that may be presented, consider contacting your local counsel.
