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

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 housing^[1] or child-occupied facilities^[2]. 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.

If you have any questions or would like further information please contact Doug Cohen, Franca DeRosa, or Zachary Bestor in Brown Rudnick’s Environmental Practice Group or Tom Phillips or Tom Regan in Brown Rudnick’s Real Estate Practice Group.

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^[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.