June 2004 - #6. The Significance of the Federal Residential Lead-Based Paint Regulations.


Vermont Bar Journal


June 2004 - #6.

The Significance of the Federal Residential Lead-Based Paint Regulations

Vermont Bar Journal - June 2004

The Significance of the Federal Residential Lead-Based Paint Regulations

Rick Reibstein, Esq.

Think lead-based paint and you may say to yourself, been there, took care of that a while ago. Your clients were told to use the disclosure forms in all of their transactions. They have either followed your advice to get the home tested, or your advice not to seek out such information.

What's to worry about? Only that the federal regulations on lead paint in homes are now being enforced. The statute authorizing them1 became law in 1992 and key regulations were promulgated in 1996 and 1998.2 In 2000 the Environmental Protection Agency's New England Regional Office (EPA) began a concerted effort to bring about compliance in the region, in concert with the Department of Housing and Urban Development (HUD), and in cooperation with state and local authorities.

State rules concerning lead also require disclosure of information about lead in residences. But states also have, and have used, the health department authority to require lead hazard abatement, when warranted. The federal agencies have not been given this authority. Except within certain limited contexts, the federal agencies cannot order lead-based paint hazard abatement.3 This means that the agencies must use their penalty deterrent to ensure that disclosure during transactions, and the new pre-renovation notification activities, are performed.

Both EPA and HUD consider lead a high priority item. This is because the Centers for Disease Control, and Congress, have identified lead as a serious health concern, and lead-based paint in residences as a significant source of the problem. Most people are aware of this, although they may not know or remember exactly how lead is dangerous. It has been shown to cause a variety of ailments, including death, decrease in IQ scores, juvenile delinquency, and aggressive behavior.4 Lead is a social health issue in many ways, beyond the physical and emotional pain it causes its victims.

The lead inspection program of the federal agencies in New England has found widespread violations. From 2000 through 2003, with a tiny handful of staff, EPA took fourteen formal enforcement actions on lead-based paint alone: eight administrative penalty orders, three administrative settlements, one judicial consent decree, and two subpoenas. In addition, one investigation was handed over to the criminal division, and resulted in a jail term (for backdating documents), and one order was issued under RCRA for immediate clean-up of lead-based paint debris. Eleven other parties received either Information Request Letters or Notices of Violation.5

One of the settlements was precedent-setting. Franklin Pierce Law School failed to provide reports in its possession on lead removals performed in housing that it rented. But these were reports on lead removed - why do they have to be provided? The law requires that all information in the possession of the landlord or seller, pertaining to lead-based paint or leadbased paint hazards, must be made available. The reports on lead removal showed that some lead had been removed, but that some lead remained. One of the tenants was a pregnant woman at the time of renting, and after she gave birth she repainted her space. Because she did not know that, when preparing the surface, she was releasing lead particles into the indoor space, her child had elevated blood levels. Had she been provided with the reports, she might have seen that her rooms were full of lead-based paint.6

There is also a new rule: the "Pre-Renovation Education Rule," that applies to anyone disturbing lead-based paint while performing renovation activities for compensation. This includes landlords who are compensated for improvements to properties through lease contracts.

It is important to consider that complying with the law also helps provide a basic protection for all property owners and managers. It may provide some protection against civil suit, by routinizing and ensuring that a standard of care is observed, and that warranties are properly given.

In addition to the disclosure and pre-renovation rules, it is also important for property owners and managers to have some knowledge of the federal work practice...

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