Client Alert: EPA’s Renewed Enforcement Focus on Lead-Based Paint

              Within a week of taking office, President Biden established environmental justice as a priority for his administration.[1]  This momentum has continued with the Biden administration consistently pushing environmental justice at the center of the federal government’s work.  Part of the Biden administration’s environmental justice goal is to reduce lead exposure pathways in vulnerable communities.[2] 

It is well documented that lead exposure, resulting in increased blood lead levels, can have a multitude of health impacts on persons of all ages.  While lead-based paint has been banned by the federal government since 1978, certain communities are still susceptible to lead exposure.  Through lead pipes, historic housing, and lead-contaminated sites, community lead exposure is still a source of concern.  

EPA Strategy to Reduce Lead Exposures and Disparities in US Communities

To address these remaining lead concerns, the EPA issued a draft strategy in October 2021.[3]  This draft strategy is aimed at reducing lead exposures and disparities in US communities.  The four main goals of this draft strategy are:

1. Reduce Community Exposures to Lead Sources,
2. Identify Lead-Exposed Communities and Improve Their Health Outcomes,
3. Communicate More Effectively with Stakeholders, and
4. Support and Conduct Critical Research to Inform Efforts to Reduce Lead Exposures and Related Health Risks.

The draft strategy was published in the Federal Register of October 28, 2021, enabling the public to provide comment.  The comment period closed March 16, 2022, and the EPA is currently reviewing comments with plans to finalize the document within the coming months.

While tweaks to the draft strategy are ongoing, the EPA is already pursuing the draft strategy’s goals through alterations to its guidance on the lead renovation, repair and painting rule (the “LRRP” rule). 

Changes to EPA Guidance on the Lead, Renovation, Repair, and Painting Rule

In 2010, the EPA published its original guidance on the LRRP rule.  In this guidance, the EPA had a section of frequent questions and answers.  Amongst those frequently asked questions was guidance on compliance obligations of property management companies (“PMCs”).  The EPA took the position that PMCs would not need certification under the LRRP rule if they are not doing the work, and that the agency would not hold the PMC liable for work performed by certified contractors.

On November 4, 2021, the EPA published a notice in the Federal Register with the intent to withdraw the frequently asked questions regarding PMC compliance with the LRRP rule.[4]  In this notice, the EPA explained that it no longer wants to make categorical assumptions about PMC responsibilities and liability.  The EPA announced, on January 5, 2021, that it would proceed with withdrawal of the two questions and withdrawal became effective March 21, 2022.[5]

The Impact of Changes to EPA Guidance on the Lead, Renovation, Repair and Painting Rule

Withdrawal of these questions from the 2010 LRRP rule guidance suggest that EPA considers PMCs to be more like contractors as opposed to landlords.  By considering PMCs to be like contractors, the EPA may seek to hold PMCs responsible for LRRP rule compliance.  PMCs engaged in activities such as soliciting bids, applying for permits, overseeing contractor work on the property, verifying completion of renovation activity, and remitting payment to contractors could be exposed to LRRP rule liability.

Potential liability for failure to comply with the LRRP rule’s requirements can expose PMCs to significant fines.  Fines are likely to range from $10,000 to $50,000, with the potential for egregious violators to be fined millions.[6]

More EPA lead standards could be upcoming, and there’s potential for the LRRP rule to be expanded to commercial buildings.  KMCL attorneys are closely tracking the EPA’s actions concerning lead standards and welcome questions and concerns. 

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[1] Executive Order on Tackling the Climate Crisis at Home and Abroad https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/27/executive-order-on-tackling-the-climate-crisis-at-home-and-abroad/

[2] Fact Sheet: The Biden-Harris Lead Pipe and Paint Action Plan https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/16/fact-sheet-the-biden-harris-lead-pipe-and-paint-action-plan/

[3] EPA Strategy to Reduce Lead Exposures and Disparities in U.S. Communities https://www.epa.gov/system/files/documents/2021-11/updated-public-comment-draft-lead-strategy-11-16-2021.pdf

[4] EPA Withdrawal of Two Answers to Frequent Questions About Property Management Companies and the Toxic Substances Control Act Lead-Based Paint Renovation, Repair, and Painting Rule: https://www.federalregister.gov/documents/2021/11/04/2021-24010/withdrawal-of-two-answers-to-frequent-questions-about-property-management-companies-and-the-toxic

[5] EPA Memorandum on Consideration of Public Comments on Withdrawal of Two Answers to Frequent Questions about Property Management Companies and the Toxic Substances Control Act Lead-based Paint Renovation, Repair and Painting Rule: https://www.epa.gov/system/files/documents/2022-01/oeca-22-000-1701.pdf

[6] An example of a typical fine would be the 2018 enforcement action taken against Magnolia Waco Properties, LLC (“Magnolia”).  Magnolia had to pay a civil penalty of $40,000.  https://www.epa.gov/enforcement/magnolia-waco-properties-llc-residential-property-renovation-rule-settlement-information#overview

An example of an egregious violators fine would be the 2020 enforcement action taken against Home Depot.  Home Depot had to pay a civil penalty of $20.75 million.  https://www.epa.gov/enforcement/home-depot-settlement-information-sheet