EPA has issued a memorandum withdrawing Agency interpretive guidance that enabled Property Management Companies to hire certified third-party firms to conduct renovation, repair and painting (RRP) activities without having to be certified themselves. In December, NMHC submitted comments objecting to EPA’s proposal.
Under the RRP rule, any activity on pre-1978 properties which disturbs more than six square feet of interior surface or 20 square feet of exterior surface or any window replacement must be performed by EPA-certified firms using certified workers. EPA issued a statement on January 25 noting that “property management companies (PMCs) that perform, offer, or claim to perform regulated renovations in pre-1978 housing or child-occupied facilities are required to obtain certification from the EPA and ensure that renovations in the homes they manage are performed by certified firms and employees trained to use lead-safe work practices. Withdrawing the PMC FAQs signals that EPA plans to hold both the PMCs and the contractors they hire responsible for compliance if the circumstances indicate that both entities performed or offered to perform renovations for compensation in target housing or child-occupied facilities.” The effective date for these changes is March 21; information on certification is available from the EPA.
The memorandum addresses the point that NMHC made in our comments—specifically that EPA was expanding the definition of covered activities from actual disturbance of LBP to include activities such as soliciting bids, applying for permits, etc.
However, EPA disagreed with our assessment of their position and stated s that “compensation for any of the activities (that NMHC suggested were an impermissible expansion of regulatory authority) "may" establish a compliance obligation, and the Agency explained that any such determinations would be exercised in the context of the facts and circumstances of individual renovations ("the EPA will evaluate compliance and appropriate enforcement actions on the basis of each case's individual facts and circumstances, and the EPA may exercise its enforcement discretion regarding PMC obligations.").”
HUD also has requirements for carrying out activities that disturb LBP . HUD and EPA have an interconnected set of regulations that span testing for LBP, disclosure to residents, safe work practices, worker training and worksite cleanup. The requirements for federally assisted properties (including properties that accept Housing Choice Vouchers) vary slightly from regulations that apply generally to pre-1978 housing.
- NMHC Leads Industry in Calling on EPA to Withdraw Notice Concerning the Toxic Substances Control Act (“TSCA”) Lead Renovation, Repair and Painting Rule (“RRP Rule”)
- Industry Coalition Comments on EPA’s “Withdrawal of Two Answers to Frequent Questions About Property Management Companies and the Toxic Substances Control Act Lead-Based Paint Renovation, Repair, and Painting Rule”
- Real Estate Coalition Amicus Brief in Support of EPA Lead Hazard Level Definition
- GAO Releases Report on Lead Testing for Housing Choice Voucher (HCV) Program Properties
- EPA Directed to Re-Open Rulemaking for Lead Hazard Level Definitions