EPA Region 7 Prioritizes Enforcement of Lead-Based Paint Regulations
On September 14, 2020, the United States Environmental Protection Agency’s (“EPA”) Region 7 office, which serves Iowa, Kansas, Missouri, Nebraska, and nine tribal nations, announced that it reached a settlement with Kansas City-based Del Properties in connection with numerous alleged violations of lead-based paint regulations under the Toxic Substances Control Act (15 U.S.C. §2601 et seq.). Del Properties is a commercial and residential leasing company that leases space in a number of renovated buildings in the Kansas City area. As part of the settlement, Del Properties agreed to pay a $14,424 civil penalty.
This settlement announcement comes less than two weeks after an announcement adding the Caney Residential Yards Site in Caney, Kansas, to the Superfund National Priorities List.[1] The Caney Residential Yards Site is a lead contaminated residential area that was formerly the site of two industrial smelting operations. These recent announcements are a reflection of EPA Region 7’s published enforcement priority of “protecting children from exposure to lead” and serve as a reminder that EPA Region 7 continues to dedicate resources to this enforcement priority.[2]
Enacted in 1976, the Toxic Substances Control Act gives EPA authority to regulate numerous potentially hazardous substances, including polychlorinated biphenyls (“PCBs”), asbestos, radon, and lead-based paint. EPA regulations governing lead-based paint are targeted primarily toward residential housing with the goal of reducing lead exposure in children. These regulations are focused on houses and other residences built before 1978, the year in which lead-based paints were banned for residential use.[3] One such regulation, 40 CFR § 745.107, requires property managers and landlords of buildings built before 1978 to make certain disclosures to prospective tenants, including providing a specific EPA-approved pamphlet, disclosing information concerning lead-based paint hazards in the building, and including a lead disclosure attachment in the lease.[4] Pursuant to 40 CFR § 745.107, the same disclosure requirements apply to home sellers and their real estate agents as apply to lessors of residential property. In addition, real estate agents must inform sellers of their disclosure obligations and real estate agents face potential liability if their clients do not comply with those disclosure obligations.
A different regulation applies to contractors that renovate certain buildings constructed before 1978. The Renovation, Repair and Painting Rule (40 CFR § 745.80) applies to renovation work done on residential properties, child-care centers, and kindergartens where lead-based paint may be present. This regulation requires “the firm performing the renovation” to provide the owner with the EPA-approved information pamphlet in advance of renovations. The regulation also requires all firms engaging in renovations to be certified in accordance with 45 CFR § 745.89 and to take numerous precautions when engaging in renovations, such as removing/covering interior furnishings, closing and covering duct work, closing doors and windows, and covering floor surfaces. Section 745.85 of the regulation contains a detailed list of “dos and don’ts” for these renovations. Finally, firms subject to the Renovation, Repair and Painting Rule also have specific recordkeeping, reporting, and retention requirements for renovations that they perform. 45 CFR § 745.86.
Takeaway
While the EPA’s lead-based paint regulations are not new, enforcement of these regulations remains a priority in EPA Region 7. Landlords, property managers, home sellers, real estate agents, and renovation contractors need to educate themselves on their obligations under these lead-based paint regulations. They should take necessary action to mitigate their legal risk and decrease the likelihood that occupants of these properties will be exposed to lead-based paint hazards.
[1] https://www.epa.gov/newsreleases/caney-kansas-residential-yards-site-added-superfund-national-priorities-list
[2] https://www.epa.gov/aboutepa/epa-region-7-midwest
[3]https://www.cdc.gov/nceh/lead/prevention/sources/paint.htm#:~:text=Lead%2Dbased%20paints%20were%20banned,lead%20paint%20chips%20and%20dust
[4] Samples of the EPA-approved disclosure pamphlet are found at: https://www.epa.gov/lead/protect-your-family-lead-your-home-real-estate-disclosure