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

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o The Disclosure Rule 533 ; and o The Lead Safe Housing Rule. 534 • The Toxic Substances Control Act (TSCA) and its LBP regulations: o The Pre-renovation Education Rule (PRE Rule) 535 ; o The Renovation, Repair, and Painting Rule (RRP Rule) 536 ; and o The Lead-Based Paint Activities, Certification, and Training Rule (LBP Activities Rule). 74 FEDERAL LEAD-SAFE PAINT ENFORCEMENT BENCHBOOK 537 , 538 • Section 7003 of the Resource Conservation and Recovery Act (RCRA). 539 Of these, only two -- the Lead Safe Housing Rule, 540 and RCRA Section 7003 541 -- may be used to compel the performance of risk reduction work. 542 Most federal LBP enforcement activity is directed to the Disclosure Rule. Only EPA and HUD enforce the Disclosure Rule, because it is non-delegable federal law (i.e., EPA and HUD cannot delegate enforcement responsibilities to state or local government). Most TSCA LBP enforcement takes place at the state or tribal level, since EPA has authorized more than 40 State/Tribal programs under the PRE Rule and/or LBP Activities Rule. 543 Most provisions of the new RRP Rule are not yet enforceable, and it is unclear how many States/Tribes will administer the program. 544 The Lead Safe Housing Rule applies to a very small portion (approximately 3 percent) of the nation’s housing stock with LBP. 545 EPA has used RCRA Section 7003 to address LBP hazards on only two occasions. 546 See Fig. 17: Enforcement Authority for Federal LBP Laws. 533 24 C.F.R. Part 35, Subpart A (HUD); 40 C.F.R. Part 745, Subpart F (EPA). 534 24 C.F.R. Part 35, Subparts B-R. 535 40 C.F.R. Part 745, Subpart E. 536 73 Fed. Reg. 21692 (Apr. 22, 2008), to be codified at 40 C.F.R. Part 745, Subparts E, L, and Q. 537 40 C.F.R. Part 745, Subpart L. 538 The Lead Hazard Standard does not impose enforceable obligations; and the State/Tribal Programs Rule is a program authorization regulation. 539 42 U.S.C. § 6973. 540 See Part V of this book, The Lead Safe Housing Rule. 541 See Part IV of this book, Resource Conservation and Recovery Act. 542 See e.g., Part I.A.3 of this book, Introduction – Lead Poisoning and Lead-Based Paint – Federal Response to Lead-Based Paint Hazards. The Disclosure Rule, Lead Hazard Standard, and LBP Activities Rule state that they do not require evaluation or risk reduction activities. 24 C.F.R. § 35.88(a)(HUD Disclosure Rule). 40 C.F.R. § 745.107(a)(EPA Disclosure Rule), § 745.61(c)(Lead Hazard Standard), § 745.220(d)(LBP Activities Rule). 543 See Part III.D of this book, Toxic Substances Control Act - State and Indian Tribal Programs, www.epa.gov/lead/pubs/authstatus.pdf, or www.epa.gov/lead/pubs/traincert.htm. 544 Although some provisions are enforceable as of June 23, 2008, most will not be until 2010. 40 C.F.R. § 745.81. State/Tribes can apply for authorization starting June 23, 2008. 40 C.F.R. § 745.339. See also Part III.F of this book, Toxic Substances Control Act - Renovation, Repair, and Painting Rule. 545 See Part V of this book, Lead Safe Housing Rule. 546 See Part IV.C of this book, Resource Conservation and Recovery Act – Imminent Hazard Authority.
Fig. 17: Enforcement Authority for Federal LBP Laws Enforceable by: Title X Disclosure Rule X X Title X Lead Safe Housing Rule X EPA HUD State/Tribe TSCA LBP Activities Rule X X 1 TSCA PRE Rule X X 1 TSCA RRP Rule X X 2 RCRA 7003 X Blank space means no enforcement authority. 1 EPA runs the TSCA LBP program in eleven states – and has authorized over 40 State/Tribal LBP programs, which operate in lieu of the federal program, under state/tribal law. 2 States/Tribes may apply for RRP Rule authorization starting June 23, 2008. B. Enforcement’s Contribution to Eliminating Lead-Based Paint Hazards EPA and HUD were signatories to the national goal to “eliminate lead paint hazards in housing where children under six live” by 2010, through “enforcement of lead safety laws and regulations” and other means. 547 Given the limited authority to demand risk reduction measures, federal LBP enforcement programs strive to promote compliance with the law and voluntary risk reduction work. 548 EPA and HUD enforcement actions have obtained LBP abatement, risk assessments, and inspections in hundreds of thousands of dwellings across the nation 549 by employing creative policies and strategies, such as: • Supplemental Environmental Projects (SEPs) 550 ; • Child Health Improvement Projects (CHIPs) 551 ; and • Coordinated compliance monitoring (inspections) and enforcement efforts with state and local agencies. 552 547 President’s Task Force on Environmental Health Risks and Safety Risks to Children, Eliminating Childhood Lead Poisoning: A Federal Strategy Targeting Lead Paint Hazards (Feb. 2000), www.cdc.gov/nceh/lead/about/fedstrategy2000.pdf. 548 See e.g., EPA’s National Program Managers’ Guidance. 549 See e.g., EPA Press Release, Connecticut Landlords Agree to Settle Lead-Based Paint Disclosure Case: 174 units will be lead-safe at a cost of more than $400,000 (Sept. 12, 2007), http://yosemite.epa.gov/opa/admpress.nsf/names/r01_2007-9-12_lead. See also e.g., HUD Press Release, HUD, EPA and U.S. Attorney in Minnesota Announce Legal Settlement with Minneapolis and St. Paul Landlords: Agreement requires 179 units to become ‘lead-safe’ (Jan. 28, 2008), www.hud.gov/news/release.cfm?content=pr08-005.cfm. 550 See section VI.E, below. 551 See id. 552 See section, VI.F and G, below. NATIONAL CENTER FOR HEALTHY HOUSING www.nchh.org 75
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Federal Lead-Based Paint Enforcemen
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Foreword This bench book is written
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Detailed Table of Contents I. Intro
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Renovations in Dwelling Units in Ta
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3. Case Resolution.................
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1. Introduction A. Lead Poisoning a
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pervasive in buildings across the n
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2. National Commitment to Eliminate
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• The LSH Rule applies to federal
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Fig. 3: Authority to Administer & E
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Fig. 4: Federal, State, and Local L
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Acronyms and Abbreviations This boo
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“Target housing” means “any h
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In truth, federal entities (agencie
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Certified Statements Sellers and la
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Inspections EPA and HUD conduct ins
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: 6. Federal Lead-Based Paint Enforce
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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