B. Federal Lead-Based Paint Enforcement Bench Book - National ...

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An agent is not responsible for the seller/landlord’s failure to disclose information known to the seller/landlord but not disclosed to the agent. 116 5. Enforcement Only EPA and HUD can enforce the Disclosure Rule, since it is non-delegable federal law. 117 See Fig. 6: Authority to Administer and Enforce the Federal Disclosure Rule. Fig. 6: Authority to Administer and Enforce the Federal Disclosure Rule EPA HUD States/Tribes* Local Governments Yes Yes No No * States/Tribes may operate EPA-authorized LBP programs under TSCA, but not Title X. 116 24 C.F.R. § 35.94(b); 40 C.F.R. § 745.115(b). 117 Several jurisdictions have enacted their own disclosure laws, or have “incorporated by reference” the federal rule into their own codes. State and local courts can enforce their jurisdiction’s disclosure law. 20 FEDERAL LEAD-SAFE PAINT ENFORCEMENT BENCHBOOK
Inspections EPA and HUD conduct inspections under their inherent authority to administer and enforce Title X. 118 Also, Section 11 of TSCA authorizes EPA to conduct inspections, including inspections of records 119 ; and to issue subpoenas to require the production of reports and other information. 120 (HUD has no authority under TSCA.) Penalties Title X authorizes HUD to impose civil money penalties pursuant to the HUD Reform Act against any person who “knowingly violates” Section 1018. 121 Title X authorizes EPA to use TSCA to enforce Section 1018 violations. Title X provides that noncompliance with the Disclosure Rule is prohibited under Section 409 of TSCA. 122 Section 409 of TSCA subjects a person to potential civil and/or criminal penalties under Section 16 of TSCA 123 -- but Title X limits the penalty amount for violations of the Disclosure Rule. As of August 2008, the maximum statutory civil penalty under Section 16 for TSCA LBP violations is $25,000 per violation, 124 adjusted for inflation to $32,500 per violation for those occurring after March 15, 2004. 125 (The maximum penalty for TSCA violations is set for re-adjustment in late 2008, to $37,500 per violation. 126 ) However, while Disclosure Rule violations are punishable under Section 16, 127 Title X limits the penalties to $10,000, 128 adjusted for inflation to $11,000 per violation for those occuring after July 28, 1997. 129 (The maximum penalty for Disclosure Rule violations is scheduled for re-adjustment in late 2008, to $16,000 per violation. 130 ) Despite the cap imposed by Title X, penalties for Disclosure Rule violations can be significant. Since each requirement of the rule is a distinct obligation for each transaction (i.e., per lease per unit), a landlord that completely fails to comply with the eleven obligations could face a penalty up to $121,000 per transaction 118 See generally, 42 U.S.C. § 4852d; 24 C.F.R. § 35.96; 40 C.F.R. § 745.118. 119 15 U.S.C. § 2610(a)-(b). 120 15 U.S.C. § 2610(c). TSCA subpoenas are enforceable in federal court. United States v. Silverwood Realtors, 2000 U.S. Dist. LEXIS 6577 (N.D. Ill. May 12, 2000)(granting government’s motion for summary enforcement of TSCA subpoena in Disclosure Rule action). EPA and/or HUD may issue voluntary “information request letters” to obtain Disclosure Rule documentation. See e.g., Part VI.E of this book, Federal Lead-Based Paint Enforcement Program – How Federal Enforcement Programs Work. 121 42 U.S.C. § 4852d(b)(1). 24 C.F.R. § 35.96(a); 40 C.F.R. § 745.118(a). 122 42 U.S.C. 4852d(b)(5), referring to 15 U.S.C. § 2689. 24 C.F.R. § 35.96(e); 40 C.F.R. § 745.118(e). 123 15 U.S.C. § 2615. 24 C.F.R. § 35.96(f); 40 C.F.R. § 745.118(f). 124 15 U.S.C. § 2615(a)(1). 125 40 C.F.R. Part 19. 126 Notification will be published in the Federal Register. The adjustment also will affect civil penalties under other environmental statutes administered by EPA. 127 42 U.S.C. § 4852d(b)(5), referring to § 15 U.S.C. § 2689; 15 U.S.C. § 2615. 128 42 U.S.C. § 4852d(b)(5); 24 C.F.R. § 35.96(f); 40 C.F.R. § 745.118(f). 129 40 C.F.R. § 745.118(f)(EPA; $10,000 per violation on/before July 28, 1997; adjusted for inflation to $11,000 per violation after July 28, 1997). But see 24 C.F.R. § 35.96(f)(HUD; $10,000 per violation). 130 Notification will be published in the Federal Register. NATIONAL CENTER FOR HEALTHY HOUSING www.nchh.org 21
Page 1 and 2: Federal Lead-Based Paint Enforcemen
Page 3 and 4: Foreword This bench book is written
Page 5 and 6: Detailed Table of Contents I. Intro
Page 7 and 8: Renovations in Dwelling Units in Ta
Page 9 and 10: 3. Case Resolution.................
Page 11 and 12: 1. Introduction A. Lead Poisoning a
Page 13 and 14: pervasive in buildings across the n
Page 15 and 16: 2. National Commitment to Eliminate
Page 17 and 18: • The LSH Rule applies to federal
Page 19 and 20: Fig. 3: Authority to Administer & E
Page 21 and 22: Fig. 4: Federal, State, and Local L
Page 23 and 24: Acronyms and Abbreviations This boo
Page 25 and 26: “Target housing” means “any h
Page 27 and 28: In truth, federal entities (agencie
Page 29: Certified Statements Sellers and la
Page 33 and 34: 6. Effect on Contracts Section 1018
Page 35 and 36: 2. TSCA Lead-Based Paint Regulation
Page 37 and 38: “Lead-contaminated soil” means
Page 39 and 40: EPA published the LBP Activities Ru
Page 41 and 42: • Provisions for re-accreditation
Page 43 and 44: 2. State/Tribal Programs: LBP Activ
Page 45 and 46: On April 22, 2008, EPA published th
Page 47 and 48: e a company; partnership; corporati
Page 49 and 50: 4. Summary of Provisions Fig. 9: Su
Page 51 and 52: • Do not involve any prohibited w
Page 53 and 54: • In target housing (including th
Page 55 and 56: the test results and other informat
Page 57 and 58: 4-3. Effective and Implementation D
Page 59 and 60: Fig. 13: RRP Rule Implementation Da
Page 61 and 62: o Provide the pamphlet to an adult
Page 63: “HEPA vacuum” means a vacuum cl
Page 67 and 68: and the renovator performed (or dir
Page 69 and 70: 4-9. Firm Certification and Respons
Page 71 and 72: Fig. 15: RRP Rule “Grandfathering
Page 73 and 74: 4. Resource Conservation and Recove
Page 75 and 76: 2. Requirements EPA must make three
Page 77 and 78: 4-2. In re 17 th Street Revocable T
Page 79 and 80: federal lead hazard standard is 40
Page 81 and 82:
program. The rule encompasses more
Page 83 and 84:
6. Federal Lead-Based Paint Enforce
Page 85 and 86:
Fig. 17: Enforcement Authority for
Page 87 and 88:
EPA’s LBP enforcement and complia
Page 89 and 90:
E. How Federal Enforcement Programs
Page 91 and 92:
Enforcement Response Policy Title X
Page 93 and 94:
3. Case Resolution Administrative v
Page 95 and 96:
dismissing EPA’s complaint. The E
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