New  Regulations on Lead Hazard Disclosure and Lead Hazard Control

( article appeared in the September 1996 issue of Cost Cuts, a technical publication of the Enterprise Foundation . )


Two lead hazard regulations have been published that will change the way owners, managers, Realtors, housing departments, and contractors will do business in the future. The regulation on lead hazard disclosure is final, the regulation on lead hazard control is proposed, but they are both equally important to the housing industry. People will ask why these regulations are necessary. Affordable housing is already difficult and expensive to develop without adding more requirements. But the fact is that although the existing rules have reduced lead poisoning substantially, it is still an enormous problem. Nine percent of children between the ages of one and five (1.7 million children) have blood lead levels above the Centers for Disease Control's level of concern. Among African-American children the rate is an astonishing 37 percent. And 17 percent of all low-income children, no matter what their race or where they live, have elevated blood lead levels.

 Existing regulations have dealt with eliminating lead from new paint, gasoline, the food and water supply, and the workplace. Now we must address the remaining source - the estimated 64 million homes that have been painted in the past with lead-based paint. These two new regulations seek to do just that.

Lead Hazard Disclosure

Requirements for Disclosure of Known Lead-Based Paint and/or Lead Based Paint Hazards in Housing (24 CFR Part.35. 40 CFR Part 745) - This regulation calls for the disclosure of information concerning lead-based paint and lead-based paint hazards in virtually all real estate transactions involving pre-1978 housing. Its purpose is to help inform approximately 9 million renters and 3 million home buyers each year about potential hazards from lead based paint, and what they might do to protect themselves and their children. Owners of more than four dwelling units were to begin implementing these requirements on September 6, whereas owners of one to four residential dwellings were given until December 6, 1996 to do so.

Before ratification of a contract for housing sale or rental, sellers, lessors, and real estate agents are responsible for ensuring compliance with the following rules:

• Sellers and landlords must give buyers and renters the pamphlet entitled ``Protect Your Family From Lead in Your Home," which provides basic information on lead poisoning, its causes, and prevention. (Copies of the booklet are available from the EPA by calling 800 - 424-LEAD. The EPA can provide you with a camera ready copy that can be reproduced at your own expense);
• Sales contracts and leases must include certain notification and disclosure language; and
• Home buyers get 10 days to conduct a lead-based paint inspection or risk assessment at their own expense. 

The rule does not require any testing or removal of lead-based paint by sellers and landlords. Regulations regarding these activities for any federally owned or assisted housing are described below. The rule does not apply to housing built after 1977, to zero-bedroom units (such as efficiencies or single-room occupancy housing), or to housing for the elderly or handicapped (unless children live there).

Lead Hazard Control

Requirements Concerning Notification. Evaluation and Reduction of Lead-Based Paint and Lead-Based Paint Hazards in Federally Owned and Assisted Housing (24 CFR Parts 36 and 37) - Users of all federal housing assistance programs, including but not limited to Community Development Block Grants, HOME, Section 8 (resident and project-based), HOPE, Shelter Plus, FHA-insured programs, and property disposed of by the federal government, will need to become familiar with this regulation. The proposed rule was published on June 7, 1996, and the comment period closed on September 5. HUD is now in the process of reviewing the comments. The final rule will hopefully be published in early 1997 and is proposed to go into effect one year after publication. However, one should begin to plan for incorporating the requirements into housing development plans now, given the long development times of most affordable housing projects.

The regulation applies to all federally owned or assisted housing built prior to 1978, including federally insured housing and housing sold by the federal government. The only exceptions are for housing for the elderly or handicapped, single-room occupancy housing and housing that has been certified as lead-free.

There are a few general rules that apply to all programs. Certain methods of paint removal, especially dry scrapping or sanding, are prohibited as these methods can create dangerously high leaded dust levels. If more than one source of housing assistance is provided, the most stringent lead-based-paint requirements must be used. And when completing lead hazard control work, the work site must be properly prepared and occupants protected. After lead hazard control work is complete, thorough clean-up and a clearance test to determine if the unit is free from leaded dust is required in some cases.

The proposed rule is split into two parts. Part 36 describes what and when lead based paint hazard evaluation and reduction activities must take place. Part 3~ describes how the hazard evaluation and reduction work must be conducted and how to ensure that occupants and their belongings are protected from potential lead hazards while the work is being done.

Part 36: What & When

In Part .36, HUD attempted to group requirements by the type of assistance received and not by the specific program, in order to reflect the streamlining of HUD programs. They were most successful in grouping all rehabilitation programs together. This means that the requirements for rehabilitation done with funds from HOME, Community Development Block Grants, HOPE, Emergency Shelter Grants, and Supportive Housing Programs, among others, are all the same. In addition, the following types of assistance have their own specific requirements: project-based assistance (including Section 8, Section 515, Supportive Housing, among others), resident-based assistance (Section 8, HOME, Shelter Plus Care), federally owned housing, single- and multifamily insured properties, properties being disposed of by the federal government and non-rehabilitation programs run through HUD's Office of Community Planning and Development.

In general, each of the types of assistance requires some combination of the following requirements: provision of the lead hazard information pamphlet mentioned above, notification of evaluation or hazard control activities, visual evaluation, limited or full paint inspections, risk assessment, hazard reduction clean up, clearance, and monitoring. Costly inspections may be eliminated by assuming that all surfaces have lead-based paint.

Generally, the requirements tend to be more stringent when the federal assistance involves major or rehabilitation activity or when the federal financial involvement is ongoing. Thus, the rehabilitation activity is actually split into three categories: units receiving less than $ 5,000 in federal assistance; units receiving between $5,000 and $25,0()0; and units receiving more than $2 5,000. A visual inspection of painted surfaces to be disturbed by rehabilitation, paint repair, and clean up are all that is required for the lower category. But an inspection, risk assessment, and abatement of certain hazards are called for if spending $2,000 or more per unit.

Project-Based Assistance

Of particular interest to many nonprofit housing developers and managers are the rules concerning project-based assistance, including Section 8 units that receive more than $ 5,000 in annual contract rent. Among other requirements, owners of planned projects must complete a risk assessment and, if lead hazards are found, submit a plan for addressing them prior to signing a housing assistance payment (HAP) contract.

Owners of older Section 8 projects have significant responsibilities as well. Housing that did not have a risk assessment and hazard reduction plan completed prior to entering into a HAP contract (probably all in-service projects), must complete a risk assessment within two to eight years of the effective date of the regulations, depending on the age of their property. If the risk assessment report identifies lead-based paint hazards, the owner shall develop an hazard reduction plan to correct the hazards. If a rent adjustment is necessary to implement the hazard reduction plan, the owner is to submit the plan to HUD.

Special rules apply if a child is found to have an elevated blood lead level, in the programs in which HUD maintains a continuing relationship with the owner. In general, if a child with an EBL is identified, the owner must immediately conduct a risk assessment and control all identified hazards.

Part 37: How

Part 37 defines exactly how to do inspections, risk assessments, interim controls, abatements, and other required activities. HUD has received many comments regarding the scope of the mandated work in these areas. Significantly, Part 37 mandates that risk assessors, inspectors, abatement supervisors, and abatement workers must be certified in accordance with Environmental Protection Agency regulations. Interim controls must be supervised by a certified abatement supervisor. Certification entails a four to five-day course costing about $500 to $600. Since most parts of the country do not have a sufficient number of certified professionals. the HUD Secretary is authorized to establish temporary qualifications for these individuals.

The National Center urged HUD to allow a one-half day training for people to be certified to carry out visual inspections and a one-day training course for people to be certified to carry out clearance dust tests and interim controls It is vitally important that all contractors should eventually know how to conduct any rehabilitation in a lead-safe manner, and making a short, inexpensive course wider! available would move us toward that goal.

HUD's proposed regulations regarding federally assisted housing will help prime the pump by seeing that more people are trained in lead safety, and by making the publicly assisted housing stock lead-safe. The ultimate goal of these regulations is to heighten the general public s awareness. concern, and knowledge about lead poisoning prevention. Once the public becomes aware of the dangers, they Will begin to demand lead safety. This is really the only way to eliminate lead poisoning for future generations.