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

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