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

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Section 15 makes it illegal to fail or refuse to maintain required records, submit notices or other information, allow access to or copying of records, or allow entry or inspection. 165 Section 16 provides civil and ciminal penalties for violations of Section 15 and Section 409. 166 As of this writing, the statutory maximum civil penalty under Section 16 is $25,000 per violation, 167 adjusted for inflation to $32,500 for violations which occurred after March 15, 2004. 168 The maximum penalty is scheduled for re-adjustment in late 2008 to $37,500 per violation. 169 EPA can assess civil penalties under Section 16 only in an administrative enforcement action 170 (but can obtain such penalties in an administrative or judicial settlement 171 ). Also under Section 16, any person who “knowingly or willfully” violates Section 409 may face criminal sanctions (in addition to or in lieu of civil penalties) of imprisonment up to one year and/or a fine up to $25,000 per day of violation. 172 Section 17 authorizes federal district courts to restrain any violation of TSCA Section 15 or 409, or compel the taking of any actions required by TSCA. 173 B. Lead Hazard Standard 1. Overview Section 403 of TSCA directed EPA to promulgate regulations to define standards for “lead-based paint hazards, lead-contaminated dust, and lead-contaminated soil.” 174 In short, under TSCA Title IV: “Lead-based paint hazard” means any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or lead-contaminated paint that is deteriorated or present in accessible, friction or impact surfaces that would result in adverse human health effects. 175 “Lead-contaminated dust” means surface dust in residential dwellings that contains lead in excess of levels determined to pose a threat of adverse health effects in pregnant women or young children. 176 165 15 U.S.C. § 2614(3)-(4). See also 40 C.F.R. § 745.87(b)-(c)(PRE/RRP Rule), § 745.235(b)-(c)(LBP Activities Rule). 166 15 U.S.C. § 2615. See also 40 C.F.R. § 745.87(d)(PRE/RRP Rule); § 745.235(e)(LBP Activities Rule). 167 15 U.S.C. § 2615(a)(1). 168 40 C.F.R. Part 19. 169 Notification will be published in the Federal Register. The adjustment also will affect civil penalties under other environmental statutes administered by EPA. 170 15 U.S.C. § 2615(a)(2)(A). 171 A judicial settlement may include administrative penalties in exchange for the government’s covenant not-to-sue the defendant for its administrative liability. See also Part VI.E.3 of this book, Federal Lead-Based Paint Enforcement Programs – How Federal Enforcement Programs Work – Case Resolution. 172 15 U.S.C. § 2615(b). See also 40 C.F.R. § 745.87(d)(PRE/RRP Rule), § 745.235(e)(LBP Activities Rule). 173 15 U.S.C. § 2616(a). 174 15 U.S.C. § 2683. 175 See 15 U.S.C. § 2681(10). 40 C.F.R. § 745.223 (LBP Activities Rule). The Disclosure Rule also uses this definition. 24 C.F.R. § 35.86; 40 C.F.R. § 745.103. 176 15 U.S.C. § 2681(11). 26 FEDERAL LEAD-SAFE PAINT ENFORCEMENT BENCHBOOK
“Lead-contaminated soil” means bare soil on residential real property that contains lead at or in excess of the levels determined to be hazardous to human health. 177 EPA promulgated the federal Lead Hazard Standard regulation in 2001, 178 and has issued an interpretive guidance. 179 This regulation does not impose any obligations on property owners, 180 or prohibit any activity. Instead, it identifies the concentration levels at which lead in paint, dust, or soil constitute a hazard under federal law. The standards are incorporated into the work practices under the LBP Activities Rule. 181 They are intended to help identify properties that present risks to children, 182 and provide federal agencies “uniform benchmarks on which to base remedial actions,” such as environmental intervention to address lead poisoning and clearance testing after lead hazard control activities. 183 2. Standards The standards apply to target housing and child-occupied facilities (COFs). 184 In brief: A “paint-lead hazard” is any LBP that meets one of the following criteria: • Deteriorated (e.g., peeling, chipping, chalking, cracking, damaged); • On a “friction surface” where a dust-lead hazard is present underneath (e.g., a window sill); • Damaged or deteriorated on an “impact surface” (e.g., where a doorknob knocks a wall); or • On a “chewable surface” (i.e., surface accessible to a young child) where there is evidence of teeth marks. 185 A “dust-lead hazard” is lead in dust that equals or exceeds: • 40 micrograms per square foot (>40 µg/ft 2 ) on floors; or • 250 micrograms per square foot (>250 µg/ft 2 ) on interior window sills. 186 A “soil-lead hazard” is bare soil with lead that equals or exceeds: • 400 parts per million (>400 ppm) in a play area; or • 1200 parts per million (>1200 ppm) in the rest of the yard on average. 187 177 15 U.S.C. § 2681(12). 178 40 C.F.R. Part 745, Subpart D (§§ 745.61-745.65). 66 Fed. Reg. 1206 (Jan. 5, 2001). www.epa.gov/lead/pubs/leadhaz.htm. 179 Interpretive Guidance for the Federal Program TSCA Sections 402/403, www.epa.gov/lead/pubs/interpguidance.htm. 180 40 C.F.R. § 745.61(c)(nothing requires owner to evaluate property or take any action to control conditions). 181 40 C.F.R. § 745.65(d)(referencing work practice requirements under LBP Activities Rule). See also 40 C.F.R. § 745.227(h)(determinations). 182 For example, EPA issued a LBP hazard abatement order under RCRA Section 7003 (“imminent and substantial endangerment” authority) where children had lead poisoning and lead-dust levels exceeded the federal lead hazard standard. In re: 17th Street Revocable Trust, RCRA-3-2000-0001TH (2000). See also, Part IV.C of this book, Resource Conservation and Recovery Act – Imminent Hazard Authority. 183 See e.g., 66 Fed. Reg. 1206, 1210. See also, EPA, Residential Lead Hazard Standards – TSCA Section 403, www.epa.gov/lead/pubs/leadhaz.htm. 184 40 C.F.R. § 745.61(b)(applicability). 185 40 C.F.R. § 745.65(a). See also 40 C.F.R. § 745.63 (definitions). 186 40 C.F.R. § 745.65(b). See also 40 C.F.R. § 745.63 (definitions). 187 40 C.F.R. § 745.65(c). See also 40 C.F.R. § 745.63 (definitions). The measure “parts per million” (ppm) equates to µg/g. See 40 C.F.R. § 745.65(c). NATIONAL CENTER FOR HEALTHY HOUSING www.nchh.org 27
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 and 30: Certified Statements Sellers and la
Page 31 and 32: Inspections EPA and HUD conduct ins
Page 33 and 34: 6. Effect on Contracts Section 1018
Page 35: 2. TSCA Lead-Based Paint Regulation
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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