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EPA Promulgates New Regulations Regarding Lead Paint Notification

Summer 1998

On June 1, 1998, the U.S. Environmental Protection Agency (“EPA”) promulgated a new regulation requiring building contractors, renovation companies, property management companies and some landlords to distribute information to the owners or occupants of certain types of housing regarding the dangers of lead based paint. This regulation will apply to all parties who renovate housing constructed before 1978. The rule takes effect on June 1, 1999.

This regulation was adopted pursuant to Title X of the Housing and Community Development Act, which is an amendment to the Toxic Substances Control Act (“TSCA”). Title X, also known as the Lead Based Paint Hazard Reduction Act, requires parties performing renovation for compensation to provide this information in the form of an EPA pamphlet describing the health effects of lead based paint.

The renovator is responsible for obtaining a signed acknowledgment from the owner or occupant of the property verifying that the pamphlet was provided to that person. Delivery of the pamphlet must take place no more than sixty days prior to the commencement of renovation activities and can be accomplished via mail or in person delivery by either the renovator or a representative, such as a landlord. If renovations are being done in the common areas, the owner must sign the acknowledgment form. Renovators are required to keep acknowledgment forms for three years.

The rule defines renovation as the modification of an existing structure that results in the disturbance of painted sur-faces, unless done for lead paint abatement. This includes the removal or modification of painted surfaces or components, including the modification of painted doors; surface preparation; sanding; scraping; the removal of large structures, such as walls and ceilings; re plastering; re plumbing; and window replacement.

Minor repairs, including plumbing and electrical repairs and maintenance, are specifically exempted from the regu-lation if they impact two square feet or less of painted surface. Emergency repairs are also exempted. The regulation defines these as repairs necessitated by “non routine failures of equipment” and repairs that are “not planned but result from a sudden, unexpected event.” This situation must present a safety or health hazard or threaten significant damage to the property in or-der to meet the definition of emergency repair.

All housing constructed prior to 1978 is covered by the rule, except for the following three types of housing, which are exempt:

1. zero bedroom housing units, including efficiency and studio apartments, dormitories, barracks and individual rented rooms;
2. housing for the elderly or disabled, unless someone under six resides at the property; and
3. properties that have had certified lead paint inspection. In order to qualify for the inspection exemption, the property must be inspected by a certified inspector. The inspector must verify that the components affected by the renovation are free of paint which contains more than 0.5 percent lead.

A party who violates the new regulation is subject to civil penalties of up to $25,000 per day. Criminal sanctions are also possible, with a maximum fine of $25,000 per day and up to one year in prison as penalties. Therefore, contractors, construction companies and other parties who may be covered by Title X are encouraged to begin planning for its implemen-tation now.

Please note that this mailing is intended to provide information of general interest and is not intended to act as legal advice. If you have any questions regarding the legal implications of this new rule, please contact a member of Godfrey & Kahn’s Environmental and Energy Law Practice Group .

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