February 20, 2019 - The Disclosure Rule requires sellers, lessors and agents to comply with certain requirements when selling or leasing housing built before...Learn more
Does the Federal Lead-based Paint Discloser Law Apply to you?
The Disclosure Rule requires sellers, lessors and agents to comply with certain requirements when selling or leasing housing built before 1978 (target housing). For purposes of the Disclosure Rule, “seller” is defined as any entity that transfers legal title to target housing, in whole or in part. The Disclosure Rule defines “lessor” as any entity that offers target housing for lease, rent, or sublease. “Purchaser” is defined as an entity that enters into an agreement to purchase an interest in target housing under the Disclosure Rule. “Lessee” is defined as any entity that enters into an agreement to lease, rent, or sublease target housing. Finally, the Disclosure Rule defines “agent” as any party who enters into a contract with a seller or lessor, including any party who enters into a contract with a representative of the seller or lessor, to sell or lease target housing.
The Disclosure Rule requires that, before a purchaser or lessee is obligated under any contract to purchase or lease target housing, certain requirements must be met. These requirements include the following:
- Sellers and lessors must provide purchasers and lessees with an EPA-approved lead hazard information pamphlet;
- Sellers and lessors must disclose the presence of any known lead-based paint and/or lead-based paint hazards to the purchasers and lessees and to any agent;
- Sellers and lessors must provide purchasers and lessees with any available records or reports pertaining to the presence of lead-based paint and/or lead-based paint hazards in the target housing;
- Sellers must grant purchasers a 10-day period to conduct a risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards, unless the parties mutually agree, in writing, upon a different period of time or the purchaser waives, in writing, the opportunity to conduct the risk assessment or inspection;
- Sellers and lessors must disclose information pertaining to lead-based paint and/or lead-based paint hazards as an attachment to a contract to sell target housing or as an attachment or within a contract to lease target housing in accordance with the Disclosure Rule requirements;
- Sellers, lessors and agents must retain a copy of each Disclosure Rule statement and certification for at least three years from completion of the transaction; and
- Each agent involved in any transaction to sell or lease target housing must ensure compliance with all requirements of the Disclosure Rule.
The Disclosure Rule does NOT apply to the following transactions:
- Sales of target housing at foreclosure;
- Leases of target housing that has been found to be lead-based paint free by an inspector certified under the Federal program or under a federally accredited state or tribal certification program;
- Short term leases of 100 days or less, where no lease renewal or extension can occur;
- Lease renewals where the lessor previously met all disclosure requirements and the information pertaining to lead-based paint and/or lead-based paint hazards has not changed;
- The sale or lease of 0-bedroom dwellings; and
- The sale or lease of housing for the elderly or persons with disabilities (unless any child under six (6) years of age resides or is expected to reside in such target housing).
EPA Enforcement Information:
Determining the Number of Violations
Each requirement of the Disclosure Rule is a separate and distinct requirement and a failure to comply with any requirement is a violation of the Disclosure Rule. In order to determine whether a violation of the Disclosure Rule has occurred, the applicable requirements must be reviewed to determine which regulatory provisions have been violated. For example, each lessor who is leasing target housing must comply with each of the Disclosure Rule requirements of 40 CFR §§ 745.107(a), 745.113(b) and § 745.113(c) including:
- Provide the lessee with an EPA-approved lead hazard information/pamphlet;
- Disclose to the lessee the presence of any known lead-based paint and/or lead-based paint hazards;
- Disclose to each agent the presence of any known lead-based paint and/or lead-based paint hazards and the existence of any available records or reports pertaining to lead-based paint and/or lead-based paint hazards;
- Provide to the lessee any available records or reports pertaining to lead-based paint and/or lead-based paint hazards in the target housing;
- Include, as an attachment or within each contract to lease target housing, the Lead Warning Statement;
- Include, as an attachment or within each contract to lease target housing, a statement by the lessor disclosing the presence of known lead-based paint and/or lead-based paint hazards or indicating no knowledge of lead-based paint and/or lead-based paint hazards;
- Include, as an attachment or within each contract to lease target housing, a list of any records or reports available to the lessor that pertain to lead-based paint and/or lead-based paint hazards or indicate that no such records or reports are available;
- Include, as an attachment or within each contract to lease, a statement by the lessee affirming receipt of the required information;
- Include, as an attachment or within each contract to lease, a statement by any agent(s) involved in the transaction to lease target housing that such agent(s) has informed the lessor of the lessor’s obligations and that the agent(s) is aware of his/her duty to ensure compliance;
- Include, as an attachment or within each contract to lease target housing, signatures and dates of the lessor, agent, and lessee certifying to the accuracy of their statements; and
- Retain a copy of the completed disclosure records for no less than three years from the commencement date of the lease.
Supplemental Environmental Projects (SEPs) are environmentally beneficial projects which a respondent agrees to undertake in settlement of an environmental enforcement action, but which the respondent is not otherwise legally required to perform. SEPs are only available in negotiated settlements.
EPA has broad discretion to settle cases with appropriate penalties. Evidence of a violator’s commitment and ability to perform the proposed Supplemental Environmental Projects (SEP) is a relevant factor for EPA to consider in establishing an appropriate settlement penalty. The SEP Policy, effective May 1, 1998, defines categories of projects that may qualify as SEPs and establishes procedures for calculating the cost of the SEP and the percentage of that cost which may be applied as a mitigating factor in determining an appropriate settlement amount. See Appendix C for links on EPA’s website to the current version of the SEP Policy and the November 23, 2004 memo entitled “Supplemental Environmental Projects in Administrative Enforcement Matters Involving Section 1018 Lead-Based Paint Cases”. EPA should ensure that the inclusion of any SEP in settlement of an enforcement action is consistent with the SEP Policy in effect at the time of the settlement.
Responsible Party Examples
This appendix gives examples of parties who may meet the regulatory definition of agent12 and therefore need to comply with the Disclosure Rule. This is not intended to be a complete or exhaustive list.
Listing Real Estate Agency (Listing Agent): Traditionally, the real estate agency enters into a direct contract with the seller or lessor for the right (exclusive or otherwise) to represent the seller. The contract states the terms of compensation in the amount of a set percentage of the sale price in consideration of the time and effort expended by the broker (real estate agency) on behalf of the seller and in further consideration of the advice and counsel provided to the seller. Thus, real estate agencies may be agents under the Disclosure Rule, and as such would be responsible for ensuring compliance with the Disclosure Rule.
Where an agency is the agent, the Disclosure Rule requirement for signature of an agent may be satisfied by a signature from any sales associate and/or broker who is in a contractual relationship with the seller or lessor for the purpose of selling or leasing target housing.
Selling Real Estate Agency (Selling Agent): The residential real estate sales contract traditionally is brokered between a listing real estate agency that represents the seller, and a selling real estate agency that represents the purchaser. Both agencies are generally paid their commissions by the seller. The listing and selling real estate agencies generally have sales associates who share their sales commission with the real estate agency and all may be agents in a sale or lease of target housing.
Buyer’s Agent: Any representative compensated solely by the purchaser is not an agent for the purposes of the Disclosure Rule.
Contract Service Provider: If a seller does not use the services of a real estate agency, but instead handles the transaction personally with the help of a contract service provider, and one responsibility of the contract service provider is to ensure that all the proper documents are used, completed and signed, the contract service provider is an agent and is responsible for ensuring compliance with the Disclosure Rule.
Property Management Firm: Where a property management firm enters into a contract with a seller or lessor for the purpose of selling or leasing target housing and where the firm’s duties include ensuring that the parties properly execute all sales and leases, the property management firm may be an agent for purposes of the Disclosure Rule.
Resident Manager: Where a resident manager is an independent contractor who has entered into a contract with a seller or lessor for the purpose of selling or leasing target housing and the duties of the resident manager include ensuring that the parties properly execute all sales and leases, then the resident manager is an agent for the purposes of the Disclosure Rule.
Locator Service: An entity or individual that locates target housing for a lessee and neither contracts with nor is in any way compensated by the lessor is not an agent for the purposes of the Disclosure Rule.
Learn more: EPA 1018 Disclosure Enforcement Policy
Abatement and RRP activities may sometimes look similar, but they are not!
Abatement is a specialized activity designed to address lead in the home. RRP activities (including most home contracting work) disturb paint as a consequence of the activity, but they are often undertaken for reasons unrelated to lead issues.
Lead-Based Paint Activities (Abatement)
- Lead-Based Paint Activities include lead-based paint inspections, risk assessments and abatement (lead-based paint removal, replacement, enclosure, encapsulation).
- Lead abatement projects are designed to permanently eliminate existing lead-based paint hazards. They may be ordered by a state or local government in response to a lead-poisoned child or other reason, or may be undertaken voluntarily at any time.
- Lead risk assessments are designed to identify lead hazards and management strategies, and lead inspections are designed to locate all lead-based paint in a home.
- Individuals must be trained and certified to conduct lead-based paint activities, and firms must be certified.
- Lead-based activities are regulated differently than renovation, repair and painting jobs, even though, in some cases, the activities are similar.
- Learn more about EPA’s Lead-Based Paint Activities program.
Renovation, Repair and Painting (RRP)
- RRP projects are typically performed at the option of the property owner for aesthetic or other reasons, or as an interim control to minimize lead hazards. It is NOT designed to permanently eliminate lead-based paint hazards.
- Since RRP projects can disturb lead-based paint in homes and buildings built before 1978, thus creating new lead hazards, individual renovators must be trained and certified lead-safe RRP practices, and firms must be certified.
- Learn more about EPA’s RRP certification and training program .
If your home was built prior to 1978 there could be danger lurking there.
EPA Proposes Strengthening the Dust-Lead Hazard Standards to Reduce Exposures to Children
WASHINGTON (June 22, 2018) – Today, the U.S. Environmental Protection Agency (EPA) released a proposal to lower the dust-lead hazard standards for public comment. The new proposed standards for lead in dust for floors and window sills will be an important step to reduce lead exposure.
“Reducing childhood lead exposure is a top priority for EPA,” said EPA Administrator Scott Pruitt. “Lead-contaminated dust from chipped and peeling lead-based paint is one of the most common causes of elevated blood lead levels in children. Strengthening the standards for lead in dust is an important component of EPA’s strategy to curtail childhood lead exposure.”
In today’s action, the Agency is proposing to change the dust-lead hazard standards from 40 µg/ft2 and 250 µg/ft2 to 10 µg/ft2 and 100 µg/ft2 on floors and window sills, respectively. These standards apply to most pre-1978 housing and child-occupied facilities, such as day care centers and kindergarten facilities. In addition, EPA is proposing to make no change to the definition of lead-based paint because the Agency currently lacks sufficient information to support such a change.
Upon publication of the Federal Register notice, EPA will accept comments on the proposed rule for 45 days in docket EPA-HQ-OPPT-2018-0166.
Title IV of the Toxic Substances Control Act (TSCA) requires EPA to establish hazard standards for lead-contaminated dust. Lead dust can be a major source of lead exposure in children. Lead dust can be generated when lead-based paint deteriorates or is disturbed (e.g., during renovation or repainting work).
In 2001, EPA set standards for lead in dust for floors and window sills in housing. Since 2001, the best available science has evolved to indicate human health effects at lower blood lead levels than previously analyzed.
During the same period, the number of children with elevated blood lead levels has continued to decline; the median blood lead level in children ages 1-5 years is now below 1µg/dL.
Reducing childhood lead exposure and addressing associated health impacts is a top priority for EPA. Lead exposure can cause a range of adverse health effects and is particularly dangerous for young children, because their nervous systems are still developing. Lead exposure continues to pose a significant health and safety threat to some children, preventing them from reaching the fullest potential of their health, their intellect, and their future.
On June 19, 2018, the US Government Accounting Office released a report of an audit it conducted of US Dept. of Housing and Urban Development’s Lead Grant and Rental Assistance programs.
What GAO Found
- Lead grant programs. While its recent grant award processes incorporate statutory requirements on applicant eligibility and selection criteria, HUD has not fully documented or evaluated these processes. For example, HUD’s guidance is not sufficiently detailed to ensure consistent and appropriate grant award decisions. Better documentation and evaluation of HUD’s grant program processes could help ensure that lead grants reach areas at risk of lead paint hazards. Further, HUD has not developed specific time frames for using available local-level data to better identify areas of the country at risk for lead paint hazards, which could help HUD target its limited resources.
- Oversight. HUD does not have a plan to mitigate and address risks related to noncompliance with lead paint regulations by public housing agencies. We identified several limitations with HUD’s monitoring efforts, including reliance on public housing agencies’ self-certifying compliance with lead paint regulations and challenges identifying children with elevated blood lead levels. Additionally, HUD lacks detailed procedures for addressing noncompliance consistently and in a timely manner. Developing a plan and detailed procedures to address noncompliance with lead paint regulations could strengthen HUD’s oversight of public housing agencies.
- Inspections. The lead inspection standard for the Housing Choice Voucher program is less strict than that of the public housing program. By requesting and obtaining statutory authority to amend the standard for the voucher program, HUD would be positioned to take steps to better protect children in voucher units from lead exposure as indicated by analysis of benefits and costs.
- Performance assessment and reporting. HUD lacks comprehensive goals and performance measures for its lead reduction efforts. In addition, it has not complied with annual statutory reporting requirements, last reporting as required on its lead efforts in 1997. Without better performance assessment and reporting, HUD cannot fully assess the effectiveness of its lead efforts.
What is it?
A surface-by-surface investigation to determine the presence or absence of lead-based paint and a certified report of the results.
Most Common Inspection Method
Portable XRF lead-based paint analyzers are the most common primary analytical method for inspections in housing because of the demonstrated ability to determine if lead-based paint is present on many surfaces and to measure the paint without destructive sampling or paint removal, as well as the high speed and low cost per sample. Portable XRF instruments expose a building component to electromagnetic radiation in the form of X-rays or gamma radiation. In response to radiation, each element, including lead, emits energy at a fixed and characteristic level. Emission of characteristic x-rays is called “X-Ray Fluorescence,” or XRF. The energy released is measured by the instrument’s fluorescence detector and displayed. The inspector must then compare this displayed value (reading) with the threshold or inconclusive range specified in the XRF Performance Characteristic Sheet (PCS) for the specific XRF instrument being used, and the specific substrate beneath the painted surface (see section IV.F, below). For instrument – substrate combinations that have a threshold:
✦ If the reading is less than the threshold, then the reading is considered negative for lead-based paint.
✦ If the reading is greater than or equal to the threshold, then the reading is considered positive.
For instrument – substrate combinations that have an inconclusive range:
✦ If the reading is less than the lower boundary of the inconclusive range, then the reading is considered negative.
✦ If the reading is within the inconclusive range, including its boundary values, then the reading is considered inconclusive.
✦ If the reading is greater than the upper boundary of the inconclusive range, then the reading is considered positive.
As of the publication, the detection elements and software of all of the XRF analyzers for which HUD has issued PCSs, all of the inconclusive ranges and/or thresholds are based on 1.0 mg/cm2, so that positive and negative readings are consistent with the HUD definition of lead-based paint for identification and disclosure purposes. Laboratory analysis is recommended to confirm inconclusive XRF results, as mentioned in Section I.G, below; alternatively, the paint can be presumed to be lead-based paint.
XRF Performance Characteristic Sheets and Manufacturer’s Instructions
When an XRF instrument is used for testing paint in target housing or pre-1978 child-occupied facilities, it must have a HUD -issued XRF Performance Characteristic Sheet. XRFs must be used in accordance with the manufacturer’s instructions and the PCS.The PCS contains information about XRF readings taken on specific substrates, calibration check tolerances, interpretation of XRF readings, and other aspects of the model’s performance.
If discrepancies exist among the PCS, the HUD Guidelines and the manufacturer’s instructions, the most stringent guidelines should be followed. For example, if the PCS has a lower (more stringent) calibration check tolerance than the manufacturer’s instructions, the PCS should be followed.
These Guidelines and the PCS are applicable to all XRF instruments that detect K X rays, L X rays, or both. Most XRF instruments in use at the time of publication of this detect K-shell fluorescence (X-ray energy), some instruments, L-shell fluorescence, and some, both K and L fluorescence. In general, L X rays released from greater depths of paint are less likely to reach the surface than are K X rays, which makes detection of lead in deeper paint layers by L X rays alone more difficult. However, L X rays are less likely to be influenced by substrate effects.
According to a March 28, 2018 memo from Director Jeffrey Harris of Toxics, Chemical Management and Pollution Prevention, the Office of Inspector General (OIG) is conducting research to determine whether EPA has an effective strategy to implement and enforce the Lead-Based Paint Renovation, Repair and Painting Rule (RRP). The rule went into effect on April 10, 2010.
Announcing the new Lead Safe v2.0. This year, clients can expect expanded services, products, and more. Our new website features an online portal for customers to search, signup for classes and more. Some things we have in the hopper for this year:
- New XRF State-of-the-art Scanner
- Expanding our geographic territory to include downstate, NYC areas
- New phone, and web support personnel
- Announcing Asbestos Testing!
- Health screenings & health news published regularly for clients and the public health
- Mold Testing gets a revamp
And much more, thank you for your support and interest.
Pat & Becky, Principals