[Federal Register Volume 64, Number 178 (Wednesday, September 15, 1999)]
[Rules and Regulations]
[Pages 50140-50231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23016]
[[Page 50139]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 35, et al.
Requirements for Notification, Evaluation and Reduction of Lead-Based
Paint Hazards in Federally Owned Residential Property and Housing
Receiving Federal Assistance; Final Rule
Federal Register / Vol. 64, No. 178 / Wednesday, September 15, 1999 /
Rules and Regulations
[[Page 50140]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 35, 91, 92, 200, 203, 206, 280, 291, 511, 570, 572,
573, 574, 576, 582, 583, 585, 761, 881, 882, 883, 886, 891, 901,
906, 941, 965, 968, 970, 982, 983, 1000, 1003, and 1005
[Docket No. FR-3482-F-06]
RIN 2501-AB57
Requirements for Notification, Evaluation and Reduction of Lead-
Based Paint Hazards in Federally Owned Residential Property and Housing
Receiving Federal Assistance
AGENCY: Office of the Secretary-Office of Lead Hazard Control, HUD.
ACTION: Final rule.
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SUMMARY: The purpose of this rule is to ensure that housing receiving
Federal assistance and federally owned housing that is to be sold does
not pose lead-based paint hazards to young children. It implements
sections 1012 and 1013 of the Residential Lead-Based Paint Hazard
Reduction Act of 1992, which is Title X of the Housing and Community
Development Act of 1992. The requirements of this rule are based on the
practical experience of cities, states and others who have been
controlling lead-based paint hazards in low-income privately-owned
housing and public housing through HUD assistance. It also reflects the
results of new scientific and technological research and innovation on
the sources, effects, costs, and methods of evaluating and controlling
lead hazards. With today's action, HUD's lead-based paint requirements
for all Federal programs are now consolidated in one part of title 24
of the Code of Federal Regulations.
DATES: Effective Dates: Section 35.140 is effective on November 15,
1999. All other provisions of the rule are effective on September 15,
2000.
FOR FURTHER INFORMATION CONTACT: For questions on this rule, call (202)
755-1785, ext. 104 (this is not a toll-free number) or e-mail your
inquiry to lead__regulations@hud.gov. For lead-based paint program
information, contact Steve Weitz, Office of Lead Hazard Control,
Department of Housing and Urban Development, 451 7th Street, SW, Room
B-133, Washington, DC 20410-0500. For legal questions, contact John B.
Shumway, Office of General Counsel, Room 9262, Department of Housing
and Urban Development. Hearing and speech-impaired persons may access
the above telephone number via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. Lead Poisoning
B. Legislative and Regulatory History
C. HUD Reinvention
D. Public Input on Rulemaking
1. HUD Guidelines
2. Title X Task Force
3. Meetings with HUD Clients
4. Comments on Proposed Rule
E. Related Actions by EPA and HUD
1. Disclosure Rule
2. EPA Certification Requirements and Work Practices Standards
3. EPA Standards for Hazardous Levels of Lead in Paint, Dust and
Soil
4. EPA Laboratory Accreditation Program
5. Possible EPA Regulations on Renovation and Remodeling
II. Summary of Public Comments on Proposed Rule
A. Diversity of Comments
B. Commenters' Broad Concerns
1. ``Missed Opportunities''
2. Cost of Compliance
3. Legality of Portions of the Rule
4. Perceived HUD Overreaching
III. Response to Public Comments and Final Rule Provisions
A. Scope and Applicability
1. Housing Receiving Less Than $5,000 in Project-Based Rental
Assistance
2. Tenant-Based Rental Assistance
3. Federally Owned Housing and the Availability of Appropriations
4. Soil and Dust Standards
a. Legal Issues
b. Coordination With EPA Rulemaking
5. Exemptions
a. Housing for the Elderly
b. Absence of Lead-Based Paint or Prior Hazard Reduction
c. Housing To Be Demolished
d. Nonresidential Property
e. Rehabilitation Disturbing Little or No Painted Surface
f. Emergency Actions and Natural Disasters
g. Law Enforcement Seized Property
h. Emergency Rental and Foreclosure Prevention Assistance
i. Adverse Weather
j. Historic Properties
k. Insufficient Appropriations
6. Deference to Other Agencies
7. Changes and Deletions to Current HUD Regulations
8. Indian Housing Programs
9. Applicability of Subparts to Programs and Dwelling Units
B. Structure of the Rule
1. Organization
2. Simplicity and Overall Strategy
3. Prescriptiveness
C. Effective Date
D. Other General Issues
1. Policy on Abatement
2. Cost of Compliance
3. Use of Task Force Recommendations
4. De Minimis Exceptions
5. Distinction Between HUD Programs and Those of Other Federal
Agencies
6. Response to Children With Lead Poisoning
7. Fair Housing Requirements
8. Qualification Requirements
9. Paint Stabilization vs. Paint Repair
E. Subparts
1. Subpart A--Disclosure of Known Lead-Based Paint Hazards Upon Sale
or Lease of Residential Property
2. Subpart B--General Lead-Based Paint Requirements and Definitions
for All Programs
a. Definitions
b. Exemptions
c. Options
d. Notice of Evaluation and Hazard Reduction Activities
e. Lead Hazard Information Pamphlet
f. Use of Paint Containing Lead
g. Prohibited Methods of Paint Removal
h. Compliance With Other, State, Tribal, and Local Laws
i. Minimum Requirements
j. Waivers
k. Prior Evaluation or Hazard Reduction
l. Enforcement
m. Records
3. Subpart C--Disposition of Residential Property Owned by a Federal
Agency Other Than HUD
4. Subpart D--Project-Based Assistance Provided by a Federal Agency
Other Than HUD
5. Subpart E--Reserved
6. Subpart F--HUD-Owned Single Family Property
7. Subpart G--Multifamily Mortgage Insurance
8. Subpart H--Project-Based Rental Assistance
9. Subpart I--HUD-Owned and Mortgagee-in-Possession Multifamily
Property
10. Subpart J--Rehabilitation
11. Subpart K--Acquisition, Leasing, Support Services, or Operation
12. Subpart L--Public Housing Programs
13. Subpart M--Tenant-Based Rental Assistance
14. Subparts N-Q--Reserved
15. Subpart R--Methods and Standards for Lead-Based Paint Hazard
Evaluation and Reduction Activities
a. Standards
b. Adequacy of Dust-Lead Standards
c. Summary Notice Formats
d. Interim Controls
e. Standard Treatments
f. Clearance
g. Occupant Protection and Worksite Preparation
h. Safe Work Practices
i. Ongoing Lead-Based Paint Maintenance and Reevaluation
IV. Deletions of Current Regulations
V. Additional Public Comment
VI. Regulatory Assessment
A. Economic Analysis
1. Summary and Methodology of Cost-Benefit Analysis
2. Regulatory Costs
3. Monetized Benefits
4. Monetized Net Benefits
5. Data Sources
[[Page 50141]]
6. Public Comments
B. Paperwork Reporting Act Statement
C. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis
1. Need For and Objectives of the Final Rule
2. Public Comments
a. Information Not Adequate
b. Capital vs. Operating Costs
c. Costs Will Be Higher Than HUD Assumes
d. There Will Be a Significant Impact
e. Owners Whose Entire Portfolio Is Affected May Be Impacted
Especially Hard
3. Impact on Small Entities
a. Number of Small Entities Affected by the Rule
b. Economic Impact
4. Final Rule Requirements
a. Lead Hazard Information Pamphlet
b. Resident Notice
c. Evaluation
d. Hazard Reduction Activities
e. Ongoing Lead-Based Paint Maintenance and Reevaluation
f. Response To a Child With an Elevated Blood Lead Level
g. Record Keeping
5. Description of Alternatives and Minimization of Economic Impact
a. Effective Date
b. Stringency of Requirements in Relation to Amount of Federal
Assistance and Nature of Program
c. De Minimis Area of Deteriorated Paint
d. Qualifications
e. Options to Provide Greater Flexibility
f. Avoidance of Duplication
VII. Findings and Certifications
A. Unfunded Mandates Reform Act
B. Environmental Impact
C. Executive Order 12866, Regulatory Planning and Review
D. Executive Order 12612, Federalism
E. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
F. Congressional Review of Major Final Rules
VIII. References
IX. List of Subjects
I. Background
A. Lead Poisoning
Childhood lead poisoning causes reduced intelligence, low attention
span, reading and learning disabilities, and has been linked to
juvenile delinquency, behavioral problems, and many other adverse
health effects. Over the past 20 years, the removal of lead from
gasoline, food canning and other sources has been successful in
reducing population blood lead levels by over 80 percent. Nearly 1
million children, however, still have excessive levels of lead in their
blood, making lead poisoning a major childhood environmental disease
(See CDC 1997a). Lead-based paint in housing is the major remaining
source of exposure and is responsible for most cases of childhood lead
poisoning today.
HUD estimates that over 60 million occupied homes, or approximately
80 percent of all homes built before 1980, have some lead-based paint.
Many of those 60 million homes have only small amounts of such paint,
however; generally, the older the home, the greater the amount of lead-
based paint. The use of lead in paint was highest in housing built
before 1960. It was completely banned for residential use in 1978 by
the Consumer Product Safety Commission.
Higher childhood blood lead levels are associated with lower
household income, residence in large urban areas, non-Hispanic African
American race, and living in older homes. Recent data from the period
1991-1994 indicate that over 16 percent of young children of less than
6 years of age from low income families had blood levels above the
level of concern set by the Centers for Disease Control and Prevention
(CDC), compared with only one percent for young children from high
income families. Over 8 percent of all young children living in housing
built before 1946 had blood lead levels over the CDC level of concern
compared to only 1.6 percent for those living in housing built after
1973. Over 11 percent of non-Hispanic African American children were
above the CDC level of concern compared to 2.3 percent for non-Hispanic
white children. Twenty-two percent of non-Hispanic African American
children living in pre-1946 housing were over the CDC level of concern.
Childhood lead poisoning is ``the most common environmental disease
of young children,'' (CDC 1990) eclipsing all other environmental
health hazards found in the residential environment (ATSDR 1988). Lead
is highly toxic and affects virtually every system of the body. At high
exposure levels, lead poisoning can cause coma, convulsions, and death.
While adults can suffer from excessive lead exposures, the groups most
at risk are fetuses, infants, and children under age 6. At low levels,
the neurotoxic effects of lead have the greatest impact on children's
developing brains and nervous systems, causing reductions in IQ and
attention span, reading and learning disabilities, hyperactivity, and
behavioral problems. These effects have been identified in many
carefully controlled research studies (National Academy of Sciences
1993; HUD 1997). The vast majority of childhood lead-poisoning cases,
however, go undiagnosed and untreated, since most poisoned children
have no obvious symptoms.
The Residential Lead-Based Paint Hazard Reduction Act of 1992 (Pub.
L. 101-550; 42 U.S.C. 4851 et seq.), which hereafter is referred to as
``Title X'' because it is Title X of the Housing and Community
Development Act of 1992, redefines the concept of ``lead-based paint
hazards.'' Under prior Federal legislation, a lead-based paint hazard
was defined as any paint greater than or equal to one milligram of lead
per square centimeter (mg/cm\2\), regardless of its condition or
location. Title X states that a lead-based paint hazard is ``any
condition that causes exposure to lead from lead-contaminated dust,
lead-contaminated soil or lead-contaminated paint that is deteriorated
or present in chewable surfaces, friction surfaces, or impact surfaces
that would result in adverse human health effects.'' Thus, under this
definition, intact lead-based paint on most surfaces is not considered
a ``hazard,'' although the condition of the paint should be monitored
and maintained to ensure that it does not become deteriorated.
Title X defines two methods of ``evaluating'' lead-based paint
hazards or lead-based paint. One method, ``risk assessment,'' includes
dust wipe sampling and other environmental sampling to identify lead-
based paint hazards. The other, ``inspection'' (or ``lead-based paint
inspection''), determines the presence only of lead-based paint.
Evaluation may also be accomplished by a combination of the two
methods. The combination approach results in an identification of all
lead-based paint and lead-based paint hazards. Title X provides for
three types of lead-based paint ``hazard reduction'': Interim controls,
abatement of lead-based paint hazards, and complete abatement of all
lead-based paint. Interim controls are ``measures designed to reduce
temporarily human exposure or likely exposure to lead-based paint
hazards.'' Abatement means ``a set of measures designed to permanently
eliminate lead-based paint hazards'' or lead-based paint. To ensure
that evaluation and hazard reduction are carried out safely and
effectively, Title X authorizes new requirements for consistency and
quality control.
B. Legislative and Regulatory History
The existing lead-based paint regulations pertaining to the
Department's programs, as well as to all federally owned residential
property at the time of sale, were written pursuant to the passage of
the Lead-Based Paint Poisoning Prevention Act of 1971, as amended prior
to 1992 (42 U.S.C. 4821 et seq.). This legislation required the
Secretary to ``establish procedures to eliminate as far as practicable
the hazards of lead-based paint poisoning
[[Page 50142]]
with respect to any existing housing which may present such hazards and
which is covered by an application for mortgage insurance or housing
assistance payments under a program administered by the Secretary.''
HUD interpreted the phrase ``housing assistance payments'' broadly and
therefore in 1976 drafted regulations to eliminate the hazards of lead-
based paint for virtually all of its programs. Part 35 of the
Department's regulations in title 24 of the Code of Federal Regulations
was promulgated setting forth general procedures for the inspection and
treatment of defective paint surfaces in HUD-associated housing. The
regulation at 24 CFR 35.5(c), however, gave each Assistant Secretary
the authority to develop regulations pertaining to their specific areas
of responsibility, and varying program regulations concerning lead-
based paint now exist throughout title 24.
The Department's lead-based paint regulations have been amended
from time to time in response to changes in the law, court orders and
increased knowledge about the hazards and treatment of lead-based
paint. The most recent Department-wide regulatory revisions pertaining
to lead-based paint were made in 1986, 1987 and 1988. Some additional
revisions specific to the public and Indian housing programs were
issued in 1991, and important changes were made in 1995 to the Housing
Quality Standards (HQS) that apply to Section 8 tenant-based rental
assistance and certain other HUD programs.
Title X represents a new and sweeping approach to the problem of
lead-based paint poisoning of children, necessitating a comprehensive
revision of HUD's lead-based paint regulations. Title X amends what had
previously been general language contained in the Lead-Based Paint
Poisoning Prevention Act and sets out specific requirements for
federally owned residential property and housing receiving Federal
assistance. Title X stresses identification of hazards, notification to
occupants of the existence of these hazards, and control of those
hazards. This final rule also reflects current knowledge of the causes
of lead poisoning and current lead-based paint hazard evaluation and
reduction technologies and practices. The presence of lead-based paint
will be more accurately identified, with fewer false negatives or false
positives. Likewise, the existence, nature, severity and location of
lead-based paint hazards (in dust, soil and deteriorated paint) will be
more accurately identified and reported. By improving lead-based paint
hazard evaluation, decisions about hazard reduction activities will be
more fully informed, and available resources will be better targeted to
reduce exposure to occupants and to the environment.
C. HUD Reinvention
The Department has launched a major restructuring to meet the
changing housing and development needs of communities across the
country. The restructuring includes program consolidation,
organizational changes within the Department, and relocation of some
cross-cutting functions outside of Washington, D.C. HUD's reinvention
efforts are taking place in the context of a broader, government-wide
reinvention process, the National Performance Review, initiated by
President Clinton and Vice-President Gore. The goal of the reinvention
is to give State, tribal and local decisionmakers maximum flexibility
to tailor Federal resources in response to local circumstances, needs
and priorities.
In order to keep pace with the changes HUD is undertaking, the
Department's program regulations must also change. Although this lead-
based paint rule was developed to implement the statutory requirements
of Title X for federally owned residential property and housing
receiving Federal assistance, the Department saw this as an opportunity
to revise all of its lead-based paint regulations to keep pace with
changes in the scientific understanding of how childhood lead poisoning
occurs, lead-based paint technology and in HUD service delivery.
The rule consolidates numerous lead-based paint regulations found
throughout HUD's program regulations into part 35 of title 24 of the
Code of Federal Regulations. This eliminates redundant lead-based paint
regulations and achieves consistency among the lead-based paint
requirements for different HUD programs. Before this rule, many HUD
clients received funding from several HUD programs with separate and
sometimes inconsistent sets of program regulations.
This rule groups HUD programs by the type of assistance provided to
make it easier to understand and implement. For instance, a client
receiving HUD funds for rehabilitation will find only one
rehabilitation subpart. In addition, grouping HUD programs by type of
assistance allows greater flexibility for local governments and
recipients of HUD funds.
Finally, the rule reflects HUD's efforts to balance the practical
need for cost-effective, affordable lead-based paint hazard
notification, evaluation and reduction measures with the statutory
requirements of Title X as well as with HUD's duty to protect children
living in a residential property that is owned or assisted by the
Federal government.
D. Public Input on Rulemaking
Consistent with Executive Order 12866, Regulatory Planning and
Review, and with Executive Order 13045 on Protection of Children From
Environmental Health Risks and Safety Risks, HUD has increased public
participation in the regulatory development process, with attention to
the special needs of children. Because of the magnitude of the changes
required in HUD's lead-based paint regulations and the potential impact
of these changes, public involvement was crucial to the rulemaking
process. The three main avenues for public involvement in the
development of the proposed rule were the HUD Guidelines for the
Evaluation and Control of Lead-Based Paint Hazards in Housing (June
1995) (HUD Guidelines), the recommendations from the Task Force on
Lead-Based Paint Hazard Reduction and Financing (Task Force), and three
major meetings of HUD clients to seek input on the implementation of
Title X. In addition to these three methods of public involvement,
there was, of course, the opportunity for public comment on the
proposed rule.
1. HUD Guidelines. The HUD Guidelines were mandated by section 1017
of Title X. They were developed by housing, public health and
environmental professionals with broad experience in lead-based paint
hazard identification and control. The HUD Guidelines form the basis
for many of the lead-based paint evaluation and reduction methods
described in subpart R, and are intended to help property owners,
government agencies and private contractors sharply reduce children's
exposure to lead-based paint hazards, without adding unnecessarily to
the cost of housing.
2. Title X Task Force. The Task Force on Lead-Based Paint Hazard
Reduction and Financing (Task Force) was mandated by section 1015 of
Title X. The Task Force submitted its report with recommendations,
Putting the Pieces Together: Controlling Lead Hazards in the Nation's
Housing, to then-HUD Secretary Henry Cisneros and EPA Administrator
Carol Browner in July 1995. Members of the Task Force included
representatives from Federal agencies, the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, the building
and construction industry, landlords, tenants, primary lending
[[Page 50143]]
institutions, private mortgage insurers, single family and multifamily
real estate interests, nonprofit housing developers, property liability
insurers, public housing agencies, low-income housing advocacy
organizations, lead-poisoning prevention advocates and community-based
organizations serving communities at high-risk for childhood lead
poisoning. The mandate of the Task Force was to address sensitive
issues related to lead-based paint hazards in private housing,
including standards of evaluation and control, financing, and liability
and insurance for rental property owners and hazard control
contractors. Methods found in this rule for ongoing lead-based paint
maintenance and the option for standard treatments are drawn from the
Task Force recommendations. Further discussion of ways the Department
used the Task Force recommendations in developing this rule is provided
below under ``Other General Issues.''
3. Meetings with HUD Clients. Prior to the development of the
proposed rule, the Department held three meetings with HUD clients on
the potential implications of Title X on HUD programs. The meetings
involved HUD constituents, grantees, and field staff of the Offices of
Public and Indian Housing (PIH), Community Planning and Development
(CPD), and Housing, as well as advocacy and tenant representatives.
Participants shared their thoughts on several Title X issues including:
Risk assessment and interim controls, hazard reduction activities
during the course of rehabilitation, occupant notice of evaluation and
hazard reduction activities, and responding to children with elevated
blood-lead levels. Additional written comments were accepted from
participants after the meetings.
4. Comments on Proposed Rule. Under the authority of Title X, HUD
published a proposed rule in the Federal Register of June 7, 1996 (61
FR 29170). The proposed rule set forth new requirements for lead-based
paint hazard notification, evaluation, and reduction for federally
owned residential property and housing receiving Federal assistance.
Comments on the proposed rule were requested on or before September 5,
1996.
Most of the 93 comments were from persons representing
organizations that would be directly affected by the rule. More than a
third of the comments (34) came from agencies of State or local
government: Community development agencies, public housing authorities,
planners, mayors, health departments and other organizations directly
or indirectly involved with federally assisted programs involving
housing. Groups representing the housing and community development
industry, or segments of it, accounted for an additional nine comments.
Fourteen Federal agencies submitted comments on the rule, including
11 agencies affected by it as potential regulated entities, and three
others with their own regulatory role in some aspect of health and
safety regulations associated with lead poisoning. Four comments were
received from hospitals, physicians or health agencies other than those
included in the count of State or local agencies, above. Four lead
poisoning prevention advocacy groups submitted comments, along with
three more broadly based environmental groups and five law firms or
legal aid organizations.
Housing developers, or representatives of developers, accounted for
five comments. Eight others were received from persons identifying
themselves as consultants or experts on some aspect of the rule, or
individuals who did not explain the basis of their interest in the
rule. In addition, two comments were received from standards-setting
entities, and one each from a bank, a secondary mortgage market
organization, a coalition of tenant action groups, a child welfare
group, and an advocacy group representing industries that manufacture
or use lead.
Comments are summarized below in Section II of this preamble and
described in more detail in Section III of this preamble.
E. Related Actions by EPA and HUD
Title X requires EPA and HUD to take other very important actions
that are complementary to and in some cases binding on this final rule.
Five such actions are: (1) The HUD-EPA regulation on notification and
disclosure during real estate transactions; (2) the EPA standards for
certification of firms and individuals performing lead-based paint
activities, and associated work practices standards; (3) EPA standards
for determining hazardous levels of lead in paint, dust and soil; (4)
the EPA program for the accreditation of laboratories for analysis of
lead in paint, dust and soil; and (5) EPA requirements applying to
renovation and remodeling activities.
1. Disclosure Rule. Section 1018 of Title X (42 U.S.C. 4852d)
directs EPA and HUD to issue joint regulations requiring disclosure of
known lead-based paint or lead-based paint hazards by persons selling
or leasing most housing built before 1978. Under that authority, the
two agencies published a final rule on March 6, 1996, which became
effective on September 6, 1996 for owners of more than four dwelling
units and on December 6, 1996 for owners of four or fewer dwelling
units. The rule requires that, before completing the transaction,
sellers and lessors of applicable housing must: (1) Provide purchasers
and lessees (tenants) with the lead hazard information pamphlet
approved by EPA; (2) disclose all known information about the presence
of lead-based paint or lead-based paint hazards; (3) provide purchasers
and lessees with any available records or reports pertaining to the
presence of lead-based paint or lead-based paint hazards; (4) include,
as an attachment to the contract or lease, certain disclosure and
acknowledgement language and a warning statement about the dangers of
lead-based paint; and (5) include certain disclosure and acknowledgment
language in the contract or lease. In addition, sellers must allow
purchasers a ten-day opportunity to inspect the dwelling for lead-based
paint or lead-based paint hazards. Purchasers and sellers are free to
negotiate another mutually-agreeable time period and all other aspects
of the inspection or risk assessment. Agents must ensure compliance
with these requirements. Section 1018 does not require either the buyer
or the seller to conduct an inspection, nor does it require either the
buyer or the seller to take action to reduce any lead-based paint or
lead-based paint hazards. Also, with lease agreements, neither the
landlord nor the tenant is required by section 1018 to conduct any type
of inspection or hazard reduction.
Section 1012 of Title X (42 U.S.C. 4822) directs HUD to require
that tenants and purchasers of ``target housing'' receiving Federal
assistance be provided the same EPA-approved pamphlet that must be used
in compliance with the section 1018 notification and disclosure
regulation. (``Target housing'' is a statutorily defined term in Title
X that means housing constructed before 1978, except housing for the
elderly and persons with disabilities unless a child of less than 6
years of age resides or is expected to reside in the housing, and
except any zero-bedroom dwelling.) As described below, HUD has avoided
duplication of pamphlet dissemination requirements if the pamphlet has
already been provided in compliance with the disclosure rule.
2. EPA Certification Requirements and Work Practices Standards.
Title IV of the Toxic Substances Control Act (TSCA, 15 U.S.C. 2681-
2692), as
[[Page 50144]]
amended by Title X, section 402(a) (15 U.S.C. 2682(a)) requires EPA to
establish a regulatory framework governing lead-based paint activities
that will ensure that individuals engaged in risk assessments,
inspections and abatement are properly trained, that contractors are
certified (licensed), and that training programs are accredited. TSCA
section 404 (15 U.S.C. 2684) mandates a process under which EPA will
approve State programs for training and certification of individuals
and firms under section 402. In States lacking their own programs, EPA
must establish, administer and enforce Federal programs. EPA published
a final rule on August 29, 1996 (40 CFR part 745, subparts L and Q, 61
FR 45777-45830) implementing sections 402 and 404 as they pertain to
target housing and ``child-occupied facilities'' (generally, certain
facilities regularly visited by children under 6 years). The
regulations contain the following requirements: Training and
certification to ensure the proficiency of individuals who offer to
conduct lead-based paint inspections, risk assessments or abatement
services; accreditation requirements to ensure that training programs
provide quality instruction; work practice standards to ensure that
lead-based paint activities are conducted safely, reliably and
effectively; and procedures for States and Tribes to apply to EPA for
authorization to administer these elements. It is expected that many
States and Tribes will have EPA-authorized certification programs in
place prior to the effective date for the 402/404 rule, which is August
29, 1999. Regardless of the status of EPA authorizations, however,
after that time, all lead-based paint inspections, risk assessments and
abatements must be conducted by individuals and contractors certified
in accordance with the EPA rule and the work must be in accordance with
the work practice standards contained in that rule.
HUD requires that lead-based paint inspections, risk assessments
and abatements done in compliance with its final rule on lead-based
paint activities in federally owned and assisted housing be conducted
in accordance with the EPA rule implementing TSCA sections 402 and 404,
i.e., that individuals and firms be certified and the work be done in
accordance with the work practices standards. It should be noted that
the EPA regulation is not applicable to interim controls. It has been
necessary, therefore, for HUD to include basic standards for such
procedures in this rule.
3. EPA Standards for Hazardous Levels of Lead in Paint, Dust and
Soil. TSCA section 403 (15 U.S.C. 2683) requires EPA to issue
regulations identifying, for the purposes of Title X, levels of lead in
paint, dust and soil that are considered hazardous. EPA published a
proposed rule on June 3, 1998. When promulgated and effective, the
final rule implementing section 403 will contain standards that affect
the risk assessments required in this rule. In the meantime, the
interim levels of lead in paint, dust and soil set forth in this rule
issued by HUD shall be followed in housing covered by the rule. When
the TSCA 403 rule is effective, HUD will issue any technical amendments
that are needed to make clear what standards are applicable to this
rule at that time.
4. EPA Laboratory Accreditation Program. Under TSCA section 405(b)
(15 U.S.C. 2685(b)), EPA has established the National Lead Laboratory
Accreditation Program (NLLAP). NLLAP recognizes laboratories which have
demonstrated the ability to accurately analyze lead in paint, dust, and
soil samples. To be NLLAP recognized, laboratories must successfully
participate in the Environmental Lead Proficiency Analytical Testing
(ELPAT) program and undergo a systems audit. EPA has recognized the
American Association for Laboratory Accreditation (A2LA) and the
American Industrial Hygiene Association (AIHA) as NLLAP accrediting
organizations. The National Lead Information Center Clearinghouse (1-
800-424-LEAD) provides the public with a continually updated list of
NLLAP recognized laboratories. In this rule on lead-based paint
requirements in housing receiving Federal assistance and federally
owned housing, HUD is requiring the use of NLLAP recognized
laboratories for laboratory-based analysis of lead in paint, dust and
soil samples.
5. Possible EPA Regulations Pertaining to Renovation and
Remodeling. TSCA section 402(c) (15 U.S.C. 2682(c)) requires EPA to
study the extent to which various types of renovation activities create
a lead-based paint exposure hazard for workers or occupants where the
work is being conducted. The same section directs EPA to revise the
regulations implementing section 402(a) to apply to renovation and
remodeling activities or to determine that such regulations are not
required. EPA has not yet made the determination as to whether
regulatory revision is necessary. If EPA does decide to issue such
regulations, it is possible that they would apply to interim controls,
which are a type of hazard reduction activity commonly required in this
HUD rule but not currently regulated by EPA. Other types of work may
also be affected. Until EPA promulgates and makes effective a new
regulation under TSCA section 402(c), the requirements in this rule
issued by HUD shall be followed in housing covered by the rule.
II. Summary of Public Comments on Proposed Rule
A. Diversity of Comments
With only a few exceptions, commenters on the proposed rule agreed
that lead-based paint hazards are a serious health problem deserving to
be addressed. There was, however, an extraordinary diversity of views
regarding how best to control lead-based paint and its associated
risks. Additionally, commenters varied widely on the question of what
relative priority lead-based paint control efforts should enjoy, given
the shortage of resources for the provision of housing services
generally, and the costs associated with lead hazard control measures.
Commenters also perceived the proposed rule in different ways. Some
considered it biased in favor of lead-based paint abatement as opposed
to less expensive interim control procedures. Several argued that in
recent years interim controls have become accepted as a wiser response
to lead hazards than more elaborate abatement processes. Other
commenters, however, warned against what they saw as undue readiness in
the proposed rule to undertake limited measures to control hazards in
circumstances where, these commenters believed, such measures would be
inadequate and would afford only temporary solutions of unknown
duration.
Spokespersons for State and local funded agencies, despite
providing many comments on ways to make the rule more effective, were
concerned that the cost of compliance with the rule would severely
affect their housing programs.
Most, although not all, of the commenters representing the health
industry or environmental concerns pleaded for a stronger rule, for
more rapid effectiveness, and for a more strenuous program of hazard
control than the proposed rule required.
Regulated Federal agencies, like their State and local
counterparts, worried about costs and often advocated wider discretion.
Many State and Federal commenters advocated more deference on HUD's
part to hazard control programs, present or future, that have been or
will be developed elsewhere.
Commenters from varying backgrounds suggested that HUD's rule
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was likely to become the nationwide ``standard'' for compliance, i.e.,
that courts (through tort litigation) and lending institutions (through
underwriting standards) eventually would establish a standard of care
applicable to private housing suppliers that was closely patterned
after the standards set out in this rule. Most often, this observation
was accompanied by expressions of concern that the proposed rule was
not adequate to provide the appropriate standard of care for the
nation's housing stock.
B. Commenters' Broad Concerns
Following is a brief description of the most common concerns
expressed by the commenters. The Department's response to these
concerns is described and explained in Section IV of this preamble
below.
1. ``Missed Opportunities''. Some argued that the proposed rule was
misdirected, set the wrong priorities, spent limited resources less
wisely than they could be spent, or failed to take important additional
considerations into account. Most typical are comments suggesting that
the rule:
(1) Should stress abatement more (or less);
(2) Is inadequately focused on controlling lead in units currently
occupied by small children;
(3) Pays insufficient attention to soil-related hazards;
(4) Pays too little deference to EPA and/or private-sector
standards-setters;
(5) Stresses liability risk-management over health-based hazard
control measures; or
(6) Otherwise misses an opportunity to apply the most effective
possible rule to an acknowledged problem.
2. Cost of Compliance. A very large number of commenters expressed
concerns about costs. Cost-related comments took many forms, but the
most frequently raised assertions were variations on the following:
(1) The cost-benefit analysis in the Economic Analysis is
inaccurate and grossly underestimates the impact the rule will have on
the ability of federally funded entities to carry out their programs.
(2) Because of high costs, the regulation will divert resources
that could be better used to meet other critical housing needs.
(3) Costs will be so extreme that many housing programs currently
in existence will be forced to close down or drastically curtail their
productivity.
(4) The rule will cause existing housing to deteriorate as it
becomes too expensive to rehabilitate, or will distort local selection
processes by steering them away from older dwellings most in need of
rehabilitation.
(5) Landlords in HUD's tenant-based rental assistance program will
not accept the additional financial burden of participating in the
program.
3. Legality of Portions of the Rule. Two of the issues presented
raised challenges to the legitimacy of portions of the rule, asserting
that:
(1) Lead hazard controls in the tenant-based subsidy programs and
controls on properties receiving less than $5,000 in project-based
assistance are beyond the scope of the statute.
(2) The rule's soil-testing and soil-abatement/control provisions
are outside the scope of HUD's authority, to the extent they fail to
differentiate the sources of lead in dust.
4. Perceived HUD Overreaching. Beyond the aforementioned legal
challenges, some commenters thought that the rule exceeded proper
bounds. They asserted that:
(1) The rule is an ``unfunded mandate,'' in that it would require
expensive undertakings by those regulated, without the offer of a new
source of financial assistance.
(2) The rule, by imposing new risk assessment requirements and/or
new obligations to control hazards, would endanger existing contracts.
(3) The underlying statute makes no distinction between HUD-
assisted and other housing receiving Federal assistance, while the rule
provides for this dichotomy without providing any justification.
(4) The rule fails to provide real support to local hazard control
efforts, instead imposing requirements that fail to recognize important
community concerns.
III. Response to Public Comments and Final Rule Provisions
A. Scope and Applicability
This rule implements the requirements of the Lead-Based Paint
Poisoning Prevention Act (LPPPA), as amended by section 1012 and
section 1013 of Title X.
Throughout this rule, lead-based paint hazard notification,
evaluation, and reduction requirements represent the minimum activities
required. Parties may voluntarily undertake more extensive lead-based
paint activities if appropriate or permitted under the specific housing
program with which the dwelling unit or residential property is
associated.
If the requirements of this rule for a dwelling unit or residential
property differ from those of the State, tribal or local government,
the more protective requirement applies.
Section 302 of the LPPPA requires HUD ``to establish procedures to
eliminate as far as practicable the hazards of lead-based paint
poisoning with respect to any existing housing which may present such
hazards and which is covered by an application for mortgage insurance
or housing assistance payments under a program administered by the
Secretary or otherwise receives more than $5,000 in project-based
assistance under a Federal housing program.'' In addition, the LPPPA
requires HUD to establish procedures for the inspection and reduction
of lead-based paint hazards in Federally owned housing at disposition.
Accordingly, this final rule covers all target housing that: (1) HUD is
associated with; (2) receives more than $5,000 in project-based
assistance under a program of an agency other than HUD; and (3) is
being disposed of by the Federal government.
Since 1975, when it first proposed regulations implementing section
302, HUD has taken a broad interpretation of the phrase ``covered by an
application for mortgage insurance or housing assistance payments under
a program administered by the Secretary.'' The scope of HUD's lead-
based paint regulations has always included all HUD-associated housing,
and this final rule continues that policy. The phrase, ``or otherwise
receives more than $5,000 in project-based assistance under a Federal
housing program,'' was added to section 302 by Title X in 1992. HUD's
interpretation of that phrase is explained below.
1. Housing Receiving Less Than $5,000 in Project-Based Rental
Assistance. Section 1012(a) amends the first sentence of the Lead-Based
Paint Poisoning Prevention Act to add the phrase ``or otherwise
receives more than $5,000 in project-based assistance under a Federal
housing program'' so that 42 U.S.C. 4822(a) now reads as follows: ``The
Secretary of Housing and Urban Development * * * shall establish
procedures to eliminate as far as practicable the hazards of lead-based
paint poisoning with respect to any existing housing which may present
such hazards and which is covered by an application for mortgage
insurance or housing assistance payments under a program administered
by the Secretary or otherwise receives more than $5,000 in project-
based assistance under a Federal housing program.''
One commenter asserted that HUD is ``clearly outside of its
statutory authority'' in imposing requirements on multifamily
properties receiving less than $5,000 in project-based assistance.
Quoting the 1992 amendments, the
[[Page 50146]]
commenter declared that despite HUD's imposing only minimal procedures
on these under-$5,000 properties, the rule would result in additional
costs and regulatory burdens on property owners that the Congress
``never intended to regulate.''
HUD disagrees. The statute does not prohibit the Department from
establishing lead-based paint hazard reduction requirements for housing
receiving less than $5,000 in project-based assistance under a program
administered by the Secretary of HUD. The legislative history makes
this clear. The Senate committee report accompanying the bill states,
``Title X would expand the coverage of the LPPPA to include pre-1978
housing suitable for occupancy by families * * * which is covered by an
application for mortgage insurance or housing assistance payments under
a HUD program or receives more than $5,000 in housing assistance
through another federal program'' (emphasis added, Senate Report 102-
332, page 117).
Although the statute gives HUD authority to impose the same
requirements on HUD assisted housing receiving less than $5,000 as on
that receiving more than $5,000, the Department recognizes that the
Congress intended that the stringency of the requirements would be
related generally to the amount of financial assistance from the
Government. HUD is not requiring, therefore, housing receiving
multifamily project-based rental assistance of $5,000 or less per unit
per year to comply with the statutorily specified requirements for
multifamily housing receiving project-based rental assistance of more
than $5,000 per unit per year. Instead, the rule requires such housing
to comply with the less stringent procedures established for tenant-
based rental assistance.
2. Tenant-Based Rental Assistance. Some commenters thought that the
Congress never intended for the rule to impose duties on landlords in
the tenant-based rental assistance programs. This group argued that
there exists a ``statutory, program-wide exemption for housing
receiving tenant-based Section 8 assistance.''
The statute is silent on whether the new minimum procedures for
lead-based paint hazard notification, evaluation and reduction apply to
tenant-based rental assistance. Congress did not amend the first
sentence of the Lead-Based Paint Poisoning Prevention Act, set out
above, to delete or amend the phrase ``housing assistance payments.''
HUD has historically interpreted this general phrase to cover virtually
all types of housing assistance, including tenant-based rental
assistance--the type of assistance that it seems to cover most
obviously. The legislative history for Title X states, however, that
housing receiving tenant-based rental assistance would be exempt from
the Lead-Based Paint Poisoning Prevention Act, as amended by Title X.
Congress was concerned that, due to the tendency of residential
properties to pass in and out of tenant-based Federal assistance
programs, it would be unworkable and inequitable to impose greater
burdens on owners of such properties than on other private landlords
(Senate Report 102-332, page 117).
Clearly, Congress did not intend for HUD to apply the new minimum
procedures set out in section 1012(a) of Title X to tenant-based rental
assistance. HUD does not believe, however, that Congress intended to
abolish HUD's current procedures, which serve to protect, in a minimal
way, the children in families receiving this type of housing
assistance. Rather, HUD infers that Congress intended for the
Department to effectively retain its present lead-based paint
requirements for tenant-based rental assistance. In its current
regulations, HUD requires units with tenant-based rental assistance
occupied by families with children under 6 to meet the minimal standard
for lead-based paint found in its Housing Quality Standards (HQS) (see
24 CFR 982.401). In this rule, then, HUD continues to require tenant-
based rental property to meet HQS. To streamline requirements, HUD has
modified the lead-based paint requirements in the current HQS slightly,
in order to be consistent with recent scientific information on how to
protect children who are exposed to lead-based paint hazards. The
requirements in this rule for tenant-based rental assistance continue
to apply only to units in which children of less than 6 years of age
reside. HUD does not believe Congress intended that Federal funds be
used to subsidize housing that can poison children.
3. Federally Owned Housing and the Availability of Appropriations.
Section 1013 of Title X amends the Lead-Based Paint Poisoning
Prevention Act at section 302 to modify existing requirements for the
sale (disposition) of all residential property constructed before 1978
and owned by a Federal agency. Section 302(a)(3)(C) (42 U.S.C.
4822(a)(3)(C)) states that:
``To the extent that subparagraphs (A) and (B) (which contain
evaluation and abatement requirements for pre-1960 housing, and
evaluation and notification requirements for housing constructed
between 1960 and 1978) increase the cost to the Government of
outstanding direct loan obligations or loan guarantee commitments,
such activities shall be treated as modifications under section
504(e) of the Federal Credit Reform Act of 1990 and shall be subject
to the availability of appropriations. To the extent that paragraphs
(A) and (B) impose additional costs to the Resolution Trust
Corporation and the Federal Deposit Insurance Corporation, its
requirements shall be carried out only if appropriations are
provided in advance in an appropriations Act. In the absence of
appropriations sufficient to cover the costs of subparagraphs (A)
and (B), these requirements shall not apply to the affected agency
or agencies.''
In the proposed rule, the Department interpreted this language to
mean that HUD (and other Federal agencies that own residential
property) need not comply with the requirements set out in section
302(a)(3) if sufficient funds are not appropriated to the agency for
this purpose. The Department then proposed in the absence of sufficient
appropriations to include requirements to identify and treat
deteriorated paint in HUD-owned properties (similar to current
procedures), even if funding is not made available to the Department to
carry out more extensive lead-based paint evaluation and reduction.
Commenters expressed strong objections to basing the rule's
requirements on the adequacy of appropriations. Several commenters
questioned whether a determination that appropriations were
``inadequate'' would or could ever be made. There was also sentiment
against using such a two-pronged system for determining regulatory
responsibility at all: ``Letting our standards be set by appropriation
levels is dreadful public policy when the health of children [is] at
stake.''
A commenter urged HUD to retain high standards in the regulations
and ``let the legislative process deal with the fiscal responsibility
[for] this community health issue.'' If more costly requirements are
optional, money will not be appropriated, predicted another commenter.
Others agreed, saying that since adequate (separate) appropriations are
not at all likely to be forthcoming for each program, contemplating
them confuses ``an already complex regulation.''
State and local funded agencies and others expressed their
resentment concerning the ``adequate appropriations'' approach taken in
the subparts affecting HUD and other Federal agency responsibilities in
the proposed rule: ``HUD has two standards, depending on whether there
is a Federal appropriation. We find this interesting as HUD has refused
to seek an
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appropriation since the legislation was passed in 1992. Instead,
subpart G (HUD without appropriations) will be used.''
Two commenters posed the question, ``may CDBG and HOME recipients
ignore their regulations if there is not additional or sufficient
funding to properly do the work?''
Another commenter roundly condemned the appropriations-based
dichotomy as ``seriously misguided'':
`` * * * There will never be explicit `sufficient'
appropriations, and the Secretary is unlikely ever to make an
explicit pronouncement that appropriations are `insufficient.' HUD
should be adopting a single set of requirements that stipulate
minimum levels of hazard controls as part of the price of doing
business, not as a matter of fiscal convenience.''
An environmental health advocacy group discussed the statutory
exception that is provided for the disposition of certain federally
owned housing--where inspection and risk assessment is called for
(under section 302(a)(3)) except when compliance would increase the
cost to the Government of outstanding direct loan obligations or loan
guarantee commitments (or would impose additional costs on RTC or
FDIC)--and there are no appropriations to fund those increased costs.
The described exception, the commenter maintained, was the only
such exception/exemption in the statute:
`` * * * Absolutely no evidence exists to support the contention
that Congress implied or otherwise intended that HUD should be able
to grant federal agencies broad discretion to opt out of lead hazard
evaluation and control requirements. Such an interpretation would
allow federal agencies such as the General Services Administration
and the Department of Defense to simply dispose of their properties
without paying heed to their condition or habitability * * *.''
The group urged that, in its final property disposition
regulations, HUD clearly limit waiver availability only to those
agencies that qualify, based on the cited statutory exemptions. The
commenter also urged that HUD revise the regulation to describe
``minimum steps'' that even agencies entitled to the waiver must
undertake. A ``sweeping exemption'' is clearly unacceptable, the group
declared, and HUD ``must not condone such an irresponsible policy and
must instead set some floor of minimum requirements with which all
federal agencies must comply, regardless of appropriations.''
HUD acknowledges the validity of many of these comments. In the
final rule, the Department includes single subparts for HUD-owned
single family property and HUD-owned multifamily property, rather than
providing separate subparts for when HUD has sufficient appropriations
and when HUD does not have sufficient appropriations. An additional
subpart is included for residential property owned by Federal agencies
other than HUD; the requirements in this subpart are identical to those
in Title X. Each affected agency must decide whether the requirements
of Title X apply to it; HUD feels that it is inappropriate for the
Department to decide this issue for other agencies.
HUD maintains, however, that the language of section 302(a)(3)(C)
makes the lead-based paint requirements for HUD-owned residential
property conditional on the sufficiency of appropriated funds to be
used to conduct inspections and abate lead-based paint hazards in HUD-
owned residential property. HUD has never received such an
appropriation for these purposes and it did not receive such a line
item in the most recent appropriations act. Therefore, in the
Department's view, ``appropriations'' are not presently sufficient to
conduct the lead-based paint activities required under section
302(a)(3)(A) and (B) and HUD is not required to implement these
procedures. If sufficient appropriations become available at a later
time, this final rule may have to be amended.
It should be noted that HUD interprets the first sentence of
section 302(a)(3)(C) to apply only to HUD programs where the cost of
conducting lead-based paint evaluation or abatement activities under
section 302(a)(3)(A) and (B) increase HUD's outstanding direct loan
obligations or loan guarantee commitments. Since appropriations are not
sufficient for the Department to conduct inspections and abatement of
lead-based paint hazards in accordance with section 302(a)(3)(A) and
(B), a determination of the effect of such activities on HUD's direct
loan obligations or loan guarantee commitments is unnecessary.
Although HUD has made the determination for purposes of section
302(a)(3) that it does not have ``sufficient appropriations'' and
therefore, the Department is not required to implement the procedures
set out in section 302(a)(3) for its HUD-owned properties, the
Department nevertheless has included lead-based paint procedures in
this final rule which the Department can afford to implement and which,
in HUD's view, are fully protective. While Congress under Title X did
not require the Department to carry out the requirements in section
302(a)(3)(A) and (B) in the absence of sufficient appropriations,
Congress was silent concerning what activities the Department should
carry out to reduce lead-based paint hazards in HUD-held properties in
the absence of appropriations. This created a ``gap'' for HUD's
interpretation. Under Chevron U.S.A., Inc. v. National Resources
Defense Council, 467 U.S. 837 (1984), where a statute is silent or
ambiguous on a specific issue, the Department's interpretation of the
statute will be upheld if it is based on a permissible or reasonable
construction of the statute. The Department believes that Congress did
not intend for HUD to ignore lead-based paint in its properties, even
in the absence of sufficient appropriations. As a consequence, HUD has
developed procedures for HUD-owned properties, as set forth in subparts
F and I, which it believes are reasonable.
4. Soil and Dust Standards. a. Legal Issues. A legal question
raised by commenters had to do with the Department's authority to
regulate in the area of dust and soil. Two basic questions were raised:
authority to regulate in the asserted absence of a nexus with lead-
based paint, and authority to regulate in the absence of EPA
regulations defining hazardous levels of lead in dust and soil under
section 403 of the Toxic Substances Control Act.
One commenter claimed that HUD is exceeding its authority and has
moved ``arbitrarily and capriciously'' by setting interim controls and
abatement levels for lead in soil and dust without reference to the
risk posed by the type of lead contained in soil or dust, or to the
bioavailability of the lead. Because HUD's action is in advance of
EPA's statutorily mandated determinations of soil cleanup levels, HUD
is overreaching, in the commenter's opinion, because the Congress
intended that EPA's regulatory action--identifying what are hazardous
levels of lead in dust and soil--was to be the ``first step'' in
rulemaking on that subject matter. According to the commenter, the
Congress gave HUD and EPA authority to implement interim controls and
abatement with respect to hazards from lead-based paint, including the
dust from lead-based paint and soil contaminated by lead-based paint.
Thus, HUD set ad hoc standards for lead dust and soil in the absence of
any EPA study results and without any nexus to lead-based paint.
Further, the commenter stated that HUD was attempting to
``decouple'' dust and soil testing and abatement from any necessary
relation to lead-based paint itself. The ``unstated premise'' of HUD's
rule would be that all lead in dust is
[[Page 50148]]
assumed to come from paint, although this is not the case. HUD's
approach would unfairly burden property owners with the costs of
cleaning up soil and dust which may have become contaminated from
``sources not under the property owner's control.'' This regulatory
requirement, the commenter asserted, would raise the constitutional
questions of a ``taking without just compensation and deprivation of
property without due process of law under the Fifth Amendment * * *''
The commenter concluded that HUD should not ``decouple'' lead found
in dust and soil from the source of that lead, and should reconsider
its imposition of a single dust-lead standard unrelated to the source
of the lead or its bioavailability. Where there is a source of dust
related to lead paint, HUD's standards may be workable, the commenter
acknowledged, although waiting for EPA's upcoming standards under
section 403 of the 1992 Act ``would have been more consistent with
Congress' intent.'' HUD's proposed standards, however, would be
``unfair'' to the extent there are other sources of lead involved,
because the Department assertedly lacks authority to regulate lead that
is from non-paint sources, and because the regulations would bear ``no
relationship to cause or risk.''
HUD and EPA, after careful consideration, do not agree with the
commenter's argument. EPA, which has the relevant regulatory authority
under TSCA section 403, has concluded that the language of Title X
supports an interpretation that dust and soil lead are covered
regardless of the source of the lead. Definitions in Title X do not
limit the source of lead in soil or dust to lead from lead-based paint.
The definitions of ``lead-contaminated dust'' and ``lead-contaminated
soil'' do not specify that the source of lead in the dust or soil must
be lead-based paint. In fact, the definition of ``lead-based paint
hazard'' specifies lead-contaminated dust and soil as sources of lead
contamination separate from and not explicitly linked to lead-
contaminated paint.
Furthermore, as a practical matter, it is not possible to determine
through routine chemical analysis the source of the lead in the dust
and soil at any given site, not to mention every site of pre-1978
housing in the nation. Also, it is well known that the scientific
literature has determined that lead in dust is an important source of
childhood lead exposure and that dust lead is well correlated with
paint lead (Lanphear, 1996). It is unlikely, therefore, that the
Congress meant to curtail the reduction of lead in dust at each
individual property covered by this regulation until it is established
that paint is the source of the lead in dust at the site.
HUD acknowledges, however, that owners cannot be expected to have
protected their properties from dust-lead deriving from such sources as
gasoline combustion, nearby bridge repainting, or nearby industrial
activity. It is reasonable that this final rule should give the highest
priority to the reduction of lead in old residential paint that may
cause lead exposure in children. As explained below in Section
III.A.5.b of this preamble, HUD has exempted from the requirements of
this final rule residential properties that are found not to contain
lead-based paint or that have had all lead-based paint removed. (This
exemption is consistent with a similar exemption in the real estate
notification and disclosure rule that was issued jointly by HUD and EPA
on March 6, 1996.) Thus, in this final rule, dust-lead hazards and
soil-lead hazards are regulated only in properties in which lead-based
paint is known or presumed to be present.
b. Coordination With EPA Rulemaking. With regard to coordination
with EPA rulemaking on hazardous levels of lead in dust and soil, HUD
agrees that the standards set forth in final regulations promulgated
and made effective by EPA pursuant to TSCA section 403 will be relevant
to this rule. The final rule states that the section 403 standards
shall be referenced when such standards are promulgated and effective.
There may be a period of time, however, between the effective date of
this final rule and the 403 regulations. Therefore, the Department is
including in this final rule interim standards for levels of lead in
dust and soil that are based on a recently-completed, peer-reviewed,
pooled analysis of virtually all available epidemiological studies that
directly measure the relationship between lead in children's blood and
lead in dust and soil (Lanphear et al. 1998). This ensures that HUD's
interim standards are scientifically valid. The interim standards
promulgated in this rule are reasonably consistent with the standards
recently proposed by EPA. For further discussion of the interim
standards, see Sections III.E.15.a and b of this preamble, below.
The Department does not agree with the comment (cited above in
Section III.A.4.a of this preamble) that it should delay all regulatory
action pertaining to lead in dust and soil until final 403 regulations
are promulgated. HUD has previously established standards for dust lead
and soil lead to ensure that hazard controls are properly targeted and
are effective in the housing it assists or owns. Such standards were
published in Lead-Based Paint: Interim Guidelines for Hazard
Identification and Abatement in Public and Indian Housing, September
1990 (Interim Guidelines); and again in Guidelines for the Evaluation
and Control of Lead-Based Paint Hazards in Housing, June 1995 (HUD
Guidelines). These standards have already been widely used in HUD
programs. The scientific literature has confirmed that lead in dust and
soil are important pathways to childhood lead exposure, as discussed
below in Section III.E.15.b of this preamble.
When EPA regulations implementing TSCA section 403 are final and
effective, they will apply to this HUD rule and will supersede most of
the HUD interim standards for dust and soil. If the final section 403
rule does not establish a standard for an activity or situation that is
covered by the HUD interim standards, there may be a question as to
whether that aspect of the interim standards is retained. HUD expects
that, after the section 403 rule is published, the Department will
publish a technical amendment to this rule or engage in additional
rulemaking to make clear what the applicable standards are.
5. Exemptions. a. Housing for the Elderly. This rule applies most
broadly to ``target housing,'' which is defined in Title X as housing
constructed prior to 1978, except housing for the elderly or persons
with disabilities (unless any child who is less than 6 years of age
resides or is expected to reside in the unit) or any 0-bedroom dwelling
unit. As in the proposed rule, HUD interprets the exemptions for
elderly and disabled housing to apply only to residential property
which is designated exclusively for elderly or disabled use.
Some commenters complained about this restrictive interpretation
and urged that it should be enough that elderly or disabled persons
reside in a dwelling unit and that no young children are expected to
reside there. After careful consideration, HUD has decided to retain
the interpretation of the exemption that was adopted in the proposed
rule. This is consistent with the definition of target housing used in
all regulations issued pursuant to Title X. The statute has never been
interpreted as providing an exemption for each dwelling that happens to
be occupied by elderly or disabled persons. Such a policy, in the
judgment of the Department, would be contrary to the intent of the
statute, which is to eliminate as far as practicable lead-based paint
hazards in all housing receiving Federal assistance and in federally
owned housing at disposition.
[[Page 50149]]
Most dwellings currently occupied by elderly persons or persons with
disabilities will probably be occupied by a child in the future.
The Department defines the phrase ``expected to reside'' in the
statutory definition of target housing as meaning that there is actual
knowledge that a child is expected to reside, rather than a general
presumption that a child will probably reside in the dwelling unit
sometime in the future. If a woman residing in the dwelling unit is
known to be pregnant, there is actual knowledge that a child is
expected to reside in that unit. However, in the context of most
residential real estate transactions it is not advisable to inquire as
to whether a woman is pregnant. The term ``expected to reside'' is used
in the statutory definition of ``target housing'' in Title X, but it is
not defined there. It would not be unreasonable for people seeking to
comply with the law to think that the term might refer to the distant
future, that is ``expected to reside at some time, however far in the
future.'' That uncertain potentiality is not part of HUD's
interpretation of statutory intent. Therefore HUD is providing this
tightened definition to minimize confusion.
b. Absence of Lead-Based Paint, or Prior Hazard Reduction. The
proposed rule provided exemptions from certain requirements if a
residential property was found to contain no lead-based paint, but such
exemptions did not apply to all programs. To streamline the final rule,
exemptions are provided for properties found not to have lead-based
paint by a certified lead-based paint inspector and for properties in
which all lead-based paint has been identified and removed in
accordance with procedures established by an EPA-authorized State or
tribal program or by EPA in accordance with 40 CFR part 745, subparts L
and Q. If the method of abatement is enclosure or encapsulation, this
exemption does not apply because lead-based paint is still present.
An owner or recipient of Federal assistance hoping to qualify for
this exemption may question whether correcting for possibly incorrect
(or outdated) positive findings during lead-based paint inspections is
permissible. In the rule, the owner or recipient always retains the
option of having additional tests performed by a certified lead-based
paint inspector. Nothing in the regulation is intended to revoke or
restrict that option. An additional test can sometimes clarify whether
lead-based paint is or is not present. Actions may be taken based on
the results of the most recent inspection by a certified lead-based
paint inspector, provided appropriate technology is used. Laboratory
analysis of a properly taken paint sample is a more reliable method of
measurement than the use of a portable X-ray fluorescence (XRF)
analyzer on site. Therefore a new laboratory analysis of a paint sample
can overturn either an old portable XRF reading or an old laboratory
test, but a new portable XRF reading can overturn only an old portable
XRF reading.
These general exemptions are intended to apply only if the entire
residential property is free of lead-based paint or has had all lead-
based paint removed. The term ``residential property'' is defined in
the rule as including such things as outbuildings, fences, and play
equipment affixed to the property as well as dwelling units and common
areas.
HUD is providing this exemption to assure that the highest priority
in the use of scarce lead-based paint hazard control resources is given
to residential properties with lead-based paint. The Department
recognizes that some properties have dust-lead hazards and/or soil-lead
hazards but do not have any lead-based paint. These properties are
expected to be a small proportion of the total affected stock, however.
c. Housing To Be Demolished. In response to questions from various
sources, the rule provides that housing to be demolished is exempt,
provided the housing remains unoccupied until demolition. Owners should
be aware, of course, that other local, State and Federal regulations
pertaining to environmental protection and occupational safety and
health may apply to demolitions.
d. Nonresidential Property. The final rule also states explicitly
that property that is not and will not be used for human habitation is
exempt. In the case of a mixed use property, HUD intends that only
those parts of the property normally associated with residential use
shall be covered by this rule. For example, retail and office
establishments in an apartment building would not be covered, but
hallways leading to such uses would be covered if the hallways also
service dwelling units that are covered by the rule.
e. Rehabilitation Disturbing Little or No Painted Surface.
Commenters also complained that existing exemptions in HUD rules for
weatherization, emergency repairs, water/sewer hookups, installation of
security devices, and other special work were no longer included in the
rule, even though, the commenters said, these were ``realistic and
necessary'' exemptions. The commenters were concerned primarily with
rehabilitation activities funded under the Community Development Block
Grant or HOME programs.
With regard to weatherization, the Department believes this is too
broad a category on which to base an exemption from this rule.
Weatherization often includes window replacement, which can generate
lead dust and therefore should be performed with safe work practices.
With regard to such activities as water and sewer hookups and
installation of security devices, HUD has provided in subpart B of the
final rule an exemption for rehabilitation that does not disturb a
painted surface. Also, activities that disturb painted surfaces of no
more than a ``de minimis'' amount of 2 square feet in any one interior
room, 20 square feet on exterior surfaces, or 10 percent of the total
surface area on an interior or exterior component with a small surface
area are not required to use ``safe work practices,'' and worksite
clearances are not required for such work. (This de minimis is stated
in the section on safe work practices in subpart R of the rule.)
Therefore, installation of security devices under rehabilitation
assistance will generally not require special precautions usually
associated with lead-based paint hazard reduction. Furthermore, in
situations in which security devices are being installed as a part of
the operation and maintenance of a residential property that is
required under this rule to incorporate ongoing lead-based paint
maintenance as a part of the everyday maintenance of the property, the
same ``de minimis'' exemption applies.
f. Emergency Actions and Natural Disasters. The proposed rule
provided a general exemption for properties undergoing emergency
repairs in response to natural disaster. The Department believes that
there are circumstances in which the time required for compliance could
adversely affect life or property and, consequently, an appropriately
tailored exemption is needed.
Two commenters requested additional exemptions beyond the ``natural
disaster'' exemption set out in the proposed rule. They believed it was
too narrow in scope, arguing that any form of disaster should be the
basis for an exemption from the rule's requirements. On the other hand,
others claimed that no justification existed for exempting damaged
properties. At a minimum, these properties need risk assessment and
full disclosure before any sale, one commenter said.
[[Page 50150]]
In the final rule, HUD has provided in subpart B a more carefully
worded provision that provides an exception for ``emergency actions
immediately necessary to safeguard against an imminent danger to human
life, health or safety, or protect property from further structural
damage (such as when a property has been damaged by a natural disaster,
fire, or structural collapse) * * *'' The exemption states, however,
that in such cases ``occupants shall be protected from exposure to lead
in dust and debris generated by such emergency actions to the extent
practicable.'' It is HUD's intent that such protection would include a
thorough cleanup. The exemption extends only to the completion of
repairs necessary to respond to the emergency; after that, the
requirements of the rule apply.
g. Law Enforcement Seized Property. A spokesperson for the Treasury
Department's Asset Forfeiture Program urged that law enforcement
agencies seizing real properties should be able to dispose of those
properties without the financial burden of compliance with the rule,
with only a duty to warn potential transferees or purchasers of the
possible presence of a lead-based paint hazard. The Justice
Department's U.S. Marshals Service made similar comments, adding that
the regulations will create ``an economic disincentive to seizing and
forfeiting pre-1978 residential property.''
In view of the special nature of law enforcement, HUD has added a
provision in subpart B of the final rule that exempts seized properties
owned for 270 days or less from the evaluation and hazard reduction
requirements of subpart C of this rule, which sets requirements for the
disposition of residential properties owned by Federal agencies other
than HUD. For seized properties owned longer than 270 days, the
requirements of subpart C will apply. Ownership begins upon receipt of
a judicial order of forfeiture. Approximately 400 seized, pre-1978
dwelling units are disposed of annually by the Department of the
Treasury and the Federal Marshals Service of the Department of Justice
combined. HUD expects that the Federal law enforcement agencies, in
exercising their managerial responsibilities over seized residential
property, will make every reasonable effort to maintain the property in
a lead-safe condition.
h. Emergency Rental and Foreclosure Prevention Assistance. Some
State and local agencies urged that programs providing emergency rental
assistance or foreclosure prevention assistance be exempted. The final
rule provides a limited exemption for such programs subject to subpart
K, Acquisition, Leasing, Support Services, or Operation. The exemption
for any specific dwelling unit expires after 100 days. HUD does not
intend that multiple households receiving emergency assistance can be
recycled through a unit without subjecting the unit to the requirements
of subpart K.
i. Adverse Weather. In the proposed rule, the subparts covering
disposition of HUD-owned single family property included an exception
allowing delay of repainting if weather conditions make such work
infeasible. In the final rule, the concept behind this exception has
been broadened to apply to evaluation and reduction activities under
all subparts, allowing delay ``for a reasonable time during a period
when weather conditions are unsuitable for conventional construction
activities.'' HUD intends that this exception will allow reasonable
delay only and will not be an excuse for noncompliance.
j. Historic Properties. The National Park Service commented that
HUD should provide greater flexibility to allow a balance to be
achieved in specific cases between the objectives of the National
Historic Preservation Act and those of the Lead-Based Paint Poisoning
Prevention Act. Conflicts between the two goals, the protection of
historically significant buildings and the creation of lead-safe
housing, may occur where abatement is required. For example, the use of
artificial siding and the replacement of historic trim and doors is
generally not appropriate for historic buildings. In response, HUD has
added a general exception in subpart B that allows designated parties
to use interim controls instead of abatement methods, if requested by
the State Historic Preservation Office, on properties listed or
determined to be eligible for listing in the National Register of
Historic Places or contributing to a National Register Historic
District. If interim controls are conducted, ongoing maintenance and
reevaluation shall be conducted as required by the applicable subpart.
For comprehensive guidance on eliminating lead-based paint hazards from
historic housing without removing historically significant features,
see Chapter 18 of the HUD Guidelines or the National Parks Service
publication, ``Preservation Brief 37: Appropriate Methods for Reducing
Lead Paint Hazards in Historic Housing,'' by S.C. Park and D.C. Hicks,
National Parks Service, Washington, DC 20013-7127 (1995).
k. Insufficient Appropriations. In the proposed rule, the
Department included in the subpart covering disposition of residential
property by a Federal agency other than HUD an exemption from that
subpart if a Federal agency determines that sufficient funds are not
appropriated to carry out the requirements of the subpart. In the final
rule, this exemption, which implements a provision of section 1013
Title X, has been moved to the Exemptions section of subpart B (See
Section III.A.3 of this preamble).
6. Deference to Other Agencies. Commenters sought, in varying
forms, ``exemptions'' providing for deference to State or local
agencies or other Federal agencies based on State lead-control laws or
an agency's demonstrated performance.
In the final rule, the Department has provided such deference in
specific situations. First, HUD is requiring that inspections, risk
assessments and abatements be conducted in accordance with the work
practices standards of a State or Indian Tribe with a program
authorized by EPA under subpart Q of 40 CFR part 745 or, in the absence
of such a program, with EPA's standards at 40 CFR part 745, subpart L.
Therefore HUD is in effect incorporating the opportunity that is built
into the EPA regulations for States to determine, within the EPA
framework, procedures for evaluation and reduction. With regard to the
policies of Federal agencies other than HUD, the final rule gives such
agencies the authority to determine whether appropriations are
sufficient to implement the requirements of section 1013 of Title X.
(See further discussion of this matter in Section III.A.3 of this
preamble, above.)
One agency suggested that high-performing public housing agencies
with good property maintenance records should be exempt from the
additional evaluations provided in the rule. Because the current
performance rating instrument used by HUD and public housing agencies
does not include a specific grade for lead-based paint activities, HUD
does not believe it has a valid way to identify ``high-performing
public housing agencies'' for the purposes of this rule. It is not
possible, therefore, to provide such a broad exemption at this time.
7. Changes and Deletions to Current HUD Regulations. In the
proposed rule, HUD did not include specific provisions for the deletion
of existing part 35 provisions being replaced by this rule or the
numerous lead-based paint requirements set out in various program
regulations in Title 24. It was stated, however, in the preamble to the
proposed rule that such deletions would be made, and this final rule
provides such changes and deletions.
[[Page 50151]]
8. Indian Housing Programs. In the proposed rule, two subparts were
applicable to Indian housing programs: the one pertaining to
rehabilitation (which was to apply to the Indian Community Development
Block Grant Program), and the one pertaining to public and Indian
housing programs (which was to apply to housing owned and operated by
Indian housing authorities under public and Indian housing programs).
With the enactment of the Native American Housing Assistance and Self
Determination Act of 1996 (NAHASDA, Pub. L. 104-330, 25 U.S.C. 4101 et
seq.), it has been necessary to revise the way this rule applies to
Indian housing programs. NAHASDA separated Indian housing from public
housing and made funding for Indian housing under the United States
Housing Act of 1937 unavailable. The primary program created by NAHASDA
is the Indian Housing Block Grant Program, which can be used for many
different forms of housing assistance. Therefore the following subparts
have been made applicable to the Indian Housing Block Grant program:
Subpart H, Project-Based Rental Assistance; subpart J, Rehabilitation
(also applicable to the Indian Community Development Block Grant
program); subpart K, Acquisition, Leasing, Support Services, or
Operation (also applicable to the Indian Community Development Block
Grant Program); and subpart M, Tenant-Based Rental Assistance. Tribes
and tribally designated housing entities receiving funds from the
Indian Housing Block Grant and Indian Community Development Block Grant
programs must determine which subpart of this final rule applies based
on the type of activity being conducted or assistance being provided to
a particular dwelling unit or residential property. If more than one
type of assistance is being provided, the most protective requirements
apply.
9. Applicability of Subparts to Programs and Dwelling Units.
Subparts C, D, and F through M of the final rule each set forth
requirements for a specific type of Federal housing activity or
assistance, such as mortgage insurance, rehabilitation assistance,
project-based rental assistance, tenant-based rental assistance, or
public housing. Each of these subparts applies to more than one
program. For example, there are at least five HUD programs that provide
tenant-based rental assistance, so all five are therefore subject to
subpart M, which states the lead-based paint requirements for housing
receiving tenant-based rental assistance.
In the proposed rule, HUD listed in the applicability section of
each subpart the programs to which the subpart was to be applicable.
This led to concern within the Department that such lists may be
incomplete or go out of date. Therefore, in the final rule these lists
have been removed from the applicability sections. In the applicability
sections, care has been taken to try to describe clearly what types of
housing assistance is and is not covered by each subpart. A current
list of programs covered by each subpart is available on the internet
at www.hud.gov, or by mail from the National Lead Information Center at
1-800-424-LEAD.
Several HUD housing assistance programs have more than one type of
eligible activity, so some programs are subject to more than one
subpart of this rule, as was mentioned above in regard to the Indian
Housing Block Grant program. In fact, there are at least nine such
programs at the time of this writing. These programs, with the subpart
designations in parentheses, are as follows: Indian Housing Block Grant
program (H, J, K, and M), Indian Community Development Block Grant
program (J and K), Home Investment Partnerships program (HOME) (J, K,
and M), Community Development Block Grant program (J and K), Supportive
Housing Program (H, J, and K), Shelter Plus Care (H and M), Housing
Opportunities for Persons With AIDS (HOPWA) (J and M), Homeownership of
Multifamily Units (HOPE 2) (J and K), and HOPE for Homeownership of
Single Family Homes (HOPE 3) (J and K). Grantees, participating
jurisdictions, Indian tribes and other entities administering these
flexible programs must decide which subpart or section of this rule
applies to the type of assistance being provided to a particular
dwelling unit or residential property. If more than one subpart or
section applies, the one with the most protective requirements applies.
To assist in making this judgment, HUD is providing in subpart B of the
rule a table listing subparts and sections in order from the most to
least protective initial hazard reduction requirements. In some cases,
more than one program as well as more than one subpart or section may
apply to a property or dwelling unit. In this case also the most
protective requirements apply.
A multifamily residential property may have some dwelling units
subject to one set of requirements and other units subject to other
requirements. In this case, the owner has the choice of either
operating the property with different sets of requirements or operating
the entire property at the most protective level. An example of this
situation is provided in subpart B of the rule.
B. Structure of the Rule
1. Organization. In the interests of simplicity and streamlining,
all of the Department's lead-based paint requirements, including the
disclosure rule, are now located in part 35. The proposed rule set
forth lead-based paint requirements in three parts, including new parts
36 and 37 that, together with part 35, subpart H, were to comprise all
of HUD's regulatory requirements for lead-based paint in a single
place. Part 36 was to describe the lead-based paint requirements for
each program covered under the Lead-Based Paint Poisoning Prevention
Act, grouped in subparts according to the agency or office responsible
and the type of assistance. Part 37 was to describe the standards and
procedures for conducting the lead-based paint evaluation and hazard
reduction activities required in part 36, with different activities
described in different subparts.
In the preamble to the proposed rule, however, HUD indicated that
it was considering consolidating parts 36 and 37 in the final rule.
This has been done. The entire rule consists of 12 subparts (B, C, D, F
through M, and R, with E and N through Q reserved), all in part 35.
Subpart A of part 35 is the rule requiring disclosure of known lead-
based paint hazards upon sale or lease of residential property
(disclosure rule), which was promulgated on March 6, 1996. EPA
published the same rule at 40 CFR part 745, subpart F. In this current
rulemaking, HUD is moving the location of the disclosure rule from
subpart H to subpart A of 24 CFR part 35. No text or section number
changes are being made to the disclosure rule. The general requirements
found in subpart A of the proposed rule are located under subpart B of
today's final rule.
Subpart B of the final rule provides all the general requirements,
definitions, exemptions, and options that apply to subparts B, C, D, F
through M, and R. Subpart B does not apply to the Disclosure Rule in
subpart A. All residential properties and dwelling units subject to
this final rule are also subject to the Disclosure Rule. Subparts C, D,
and F through M set forth the requirements for each program or type of
assistance. Subpart R of the final rule contains the required standards
and methods for conducting evaluation and hazard reduction activities
formerly found in part 37 of the proposed rule. The provisions of
subpart R are referenced in subparts B, C, D, and F through M. As
explained below, the standards and methods requirements of
[[Page 50152]]
this rule have been streamlined considerably.
One commenter suggested that the requirements for notice to
residents of the results of evaluation and hazard reduction be located
at the beginning of the rule so that they need not be repeated for each
program or type of housing. This has been done. The notice requirements
are found in subpart B at Sec. 35.125 and are referenced in the
program-specific subparts.
2. Simplicity and Overall Strategy. Several commenters complained
that, despite the effort to consolidate lead-paint regulations in a
single rule, the format of the proposed rule remained ``program
specific''. Others called it ``cumbersome''. Because community
development and housing administrators must work with a variety of
programs, they will be required to operate under different subparts.
Calling the rule lengthy and technical, one commenter said it would be
helpful if it could be organized ``in a more user-friendly fashion,''
using cross-references. Several commenters regarded the rule as
``confusing'' or in need of further consolidation.
One commenter complained that there remained ``at least 14
different requirements,'' based on the program authority or on the
amount of assistance provided.
In the final rule there are seven evaluation and hazard reduction
strategies for HUD housing programs. These strategies vary in
stringency, costliness, and lasting effectiveness in preventing
childhood lead poisoning. They are applied to the various forms of
housing assistance, based generally on: (1) The amount, nature and
duration of financial assistance provided under the program; (2) the
risk of childhood lead poisoning in the housing (based on year of
construction); and (3) whether the housing is generally rental or
owner-occupied.
There are two primary differences between the strategies of the
final rule and those of the proposed rule: (1) Paint repair has been
replaced by paint stabilization; and (2) clearance is required in the
final rule after paint stabilization, and the clearance requirement has
replaced the dust-testing requirement for pre-1950 housing with tenant-
based rental assistance.
In order from least to most stringent, the seven strategies are:
(1) Safe work practices during rehabilitation;
(2) Ongoing lead-based paint maintenance practices to assure that
paint is maintained so that it remains intact, and that safe work
practices are used (similar to the ``essential maintenance practices''
recommended by the Task Force);
(3) Visual assessment and paint stabilization;
(4) Risk assessment and interim controls (with the option of
performing specified standard treatments);
(5) Lead-based paint inspection and risk assessment, and interim
controls;
(6) Risk assessment and abatement of lead-based paint hazards; and
(7) Lead-based paint inspection, and abatement of all lead-based
paint.
These strategies include the following fundamental principles.
Whenever hazard reduction methods are employed (except for disturbances
of only a small area of paint surface) clearance is required to ensure
that the job is done properly. Second, ongoing lead-based paint
maintenance practices are required in rental housing whenever HUD has a
continuing relationship with the property. Third, to ensure that the
controls are still intact and effective over time, reevaluation is
required whenever a risk assessment and interim controls are required
and there is a continuing HUD subsidy or ownership of rental housing.
Fourth, special procedures are required in programs with a continuing
subsidy or HUD ownership of rental housing whenever a child is
identified with a blood lead level that calls for environmental
assessment and intervention (called an ``environmental intervention
blood lead level'' in the rule).
The first strategy, safe work practices during rehabilitation, is
applied only to rehabilitation assistance of no more than $5,000 per
unit. This is a ``do no harm'' policy that is intended to assure that
low-cost rehabilitation does not generate lead-based paint hazards. It
allows low-cost rehabilitation to go forward without costly lead-based
paint requirements; but it does not necessarily determine whether or
not the entire dwelling unit or property is ``lead safe,'' because, for
this strategy, clearance must be conducted only for the worksite, which
may not include the entire unit.
The goal of the second strategy, ongoing lead-based paint
maintenance only, is to ensure that paint is kept stabilized and that
the work is done in a safe manner. Clearance is required only of the
worksite. This strategy does not provide full assurance that a property
is free of lead-based paint hazards, but it will minimize such hazards
over time. It is applied to properties that are subject to an
application for multifamily mortgage insurance and were built between
1960 and 1977. These are rental properties with no subsidy, only
mortgage insurance, but there is a continuing relationship between the
Department, the borrower and the lender through the insurance
agreement. These properties were built toward the end of the period
when lead-based paint was used in housing and are less likely to have
lead-based paint hazards than older housing. This strategy is also
applied as a transitional requirement for multifamily properties
receiving project-based assistance during the phase-in period before a
risk assessment is conducted.
The third strategy, visual assessment, paint stabilization and
clearance, provides assurance that the housing to which it is applied
is ``lead safe.'' To provide such assurance, HUD intends that clearance
be unit-wide, not just for the worksite. It should be noted that
clearance is required only if paint stabilization is performed, so a
unit that passes the initial visual assessment (i.e. no deteriorated
paint is identified) undergoes no dust testing. Also, if the housing is
in poor physical condition, or if there are high levels of lead in the
soil, lead-based paint hazards may reappear. Therefore, ongoing
maintenance is required whenever HUD has a continuing relationship with
rental property. The final rule applies this strategy to HUD-owned
single family housing that is sold with a mortgage insured by HUD;
properties with acquisition, leasing, support services, or operation
assistance; tenant-based rental assistance programs where a child of
less than 6 years of age resides; multifamily housing receiving up to
and including $5,000 per unit per year in project-based rental
assistance; and single family properties assisted under the project-
based certificate or voucher program, the moderate rehabilitation
program, or another HUD-funded project-based rental assistance program.
The fourth strategy, risk assessment and interim controls, with the
option to conduct standard treatments, provides assurance that all
lead-based paint hazards have been eliminated. Unit-wide clearance is
always required. Ongoing maintenance of painted surfaces is required
whenever HUD has a continuing relationship with the property; and
reevaluation is required if HUD is the owner, if there is project-based
rental assistance in a multifamily property exceeding $5,000 per unit
per year, and in public housing. This strategy is applied to properties
that are subject to an application for multifamily mortgage insurance
and were built before 1960, housing receiving multifamily project-based
assistance of more than $5,000 per unit annually, and housing receiving
rehabilitation
[[Page 50153]]
assistance of $5,000--$25,000 per unit. A risk assessment and interim
controls are also required in public housing developments that have
lead-based paint that has not yet been abated.
The fifth strategy, lead-based paint inspection, risk assessment,
and interim controls, is applied only to HUD-owned multifamily housing.
It differs from the fourth strategy in that it requires a lead-based
paint inspection as well as a risk assessment. Most of these properties
are being sold, frequently without HUD mortgage insurance, so HUD will
not have a continuing relationship with them and thus will not be able
to ensure that ongoing lead-based paint maintenance practices and
reevaluation are practiced. With a lead-based paint inspection, HUD
will provide the buyer with information on the location of any
remaining lead-based paint on the property that the buyer and later
owners can use to avoid generating dust-lead hazards in the future.
The sixth strategy involves risk assessment and abatement of lead-
based paint hazards. This strategy is used when Federal rehabilitation
assistance is greater than $25,000 per unit. When Federal funds are
used to make such a substantial investment in a property, it is logical
that long-term hazard control measures be implemented at a time when
substantial concurrent rehabilitation is being done. Paint testing of
surfaces to be disturbed during rehabilitation is called for to ensure
that new lead-based paint hazards are not inadvertently created, but
the designated party has the option to presume the presence of lead-
based paint on such surfaces.
The objective of the seventh strategy, lead-based paint inspection
and abatement of lead-based paint, is abatement of all lead-based
paint. This strategy applies to public housing and to properties that
are being converted from nonresidential to residential use or are
subject to major rehabilitation and are being financed with HUD/FHA
multifamily mortgage insurance. This is not a new requirement for
public housing. Current public housing regulations require a lead-based
paint inspection and, at the time of modernization, abatement of all
lead-based paint. However, because complete modernization (and
therefore complete abatement) may not occur for many years in some
housing developments, and because modernization (and therefore
abatement of lead-based paint) can occur on a piecemeal basis (e.g.,
kitchens one year, bathrooms another), the final rule, like the
proposed rule, adds the requirements of strategy four, risk assessment
and interim controls, during the period prior to completion of
abatement to assure that all public housing occupied by families will
be free of lead-based paint hazards. The requirement for conversions
and major rehabilitations financed with multifamily mortgage insurance
is new, however. HUD believes that such properties, after undergoing
such substantial renovation, should be as free as reasonably possible
of any future lead-based paint hazards.
3. Prescriptiveness. There were several comments to the effect that
the rule was too prescriptive. These commenters generally recommended a
movement toward ``performance-based'' requirements, arguing that a
performance-based rule would stand up better to future technical
innovations.
One commenter recognized that adopting performance-based standards
was not always a simple matter. Decisions to do so must be made
``requirement-by-requirement,'' but the commenter urged looking for
means to use such standards wherever feasible, and cautioned against
``locking in'' requirements which new technology or research may well
show to be inappropriate in the future. For example, the commenter
recommended against specifying HEPA vacuuming in the rule, indicating
that research underway may suggest that in some cases less specialized
equipment or less extensive procedures can be just as effective.
Another commenter suggested basing requirements on performance, but
including a more prescriptive ``safe harbor'' optional alternative.
Sometimes, the commenter observed, performance-based standards are
simply unhelpful to those regulated due to lack of clarity or
information about the method of obtaining the desired performance.
Several commenters recommended against ``too rigid'' regulatory
requirements that would require ``full-blown'' future rule making
proceedings to overturn. Some suggested incorporation of guidelines
into the rule by reference.
Although the proposed rule included prescriptive requirements,
Sec. 37.1(b) of the proposed rule stated that those requirements did
not apply to lead-based paint inspections, risk assessments and
abatements performed by inspectors, risk assessors, abatement
supervisors and workers certified in accordance with EPA regulations
under the Toxic Substances Control Act (TSCA). Rather, the prescriptive
standards in proposed part 37 were to apply only when such activities
were performed by individuals who were not certified in accordance with
EPA requirements, should certification mechanisms not be in place.
The effective date of the EPA certification requirements and the
EPA work practices standards is August 31, 1999. By that date,
individuals conducting inspections, risk assessments and abatement must
be certified and all such activities must be performed pursuant to the
work practices standards in that regulation or in requirements of EPA-
authorized State or Tribal programs. There is no need for HUD to issue
detailed requirements for risk assessment, inspection and abatement.
They have been omitted, therefore, from the final rule, except for
interim dust and soil standards.
This leaves the question of whether the proposed requirements for
interim controls and related procedures that are not covered by the EPA
regulations are too prescriptive. Related procedures include standard
treatments, occupant protection and worksite preparation, clearance,
ongoing lead-based paint maintenance, reevaluation, and safe work
practices. In the final rule, HUD has tried to strike a balance between
the need to assure that the procedures will be effective in preventing
childhood lead poisoning and the goal of providing flexibility and
avoiding rigidity.
C. Effective Date
The proposed rule included an effective date of 12 months after
publication of the final rule, and the Department explained in the
preamble that this time period was chosen to allow all affected parties
time to prepare for implementation of the new requirements.
Some commenters urged that the effective dates in the rule be moved
up in whole or in part, while others asked for a further delay to allow
affected parties to secure expert assistance or training opportunities.
One commenter urged waiting to make the rule effective until EPA's
upcoming rule on health-based standards for lead in dust and soil was
promulgated and made effective.
Advocates of rapid effectiveness pointed out that the rule already
was ``overdue,'' and claimed that important health benefits could be
realized by the regulation's becoming operational sooner rather than
later. Several commenters advocated immediate effectiveness for
portions of the rule dealing with occupant protection, worksite
preparation and the prohibitions against unsafe practices.
HUD considered imposing an immediate effective date because the
statutory effective date of January 1, 1995 had already passed and
because of the risk to the health of children from
[[Page 50154]]
a further delay in implementing these requirements. On the other hand,
HUD noted that program administrators at all levels of government, as
well as property owners and contractors performing lead-based paint
activities, would not have adequate time for education, training,
planning and budgeting to implement fully the new technical standards,
requirements and procedures with an effective date earlier than
proposed.
After thorough consideration of these varying points of view HUD
has decided to retain the proposed 12-month time period following
publication for a phasing in of the effective date of the final rule,
with one exception: the prohibition of certain methods of paint removal
or surface preparation set forth in Sec. 35.140 shall be effective 60
days after publication of this final rule. In addition, designated
parties may choose to comply with the requirements of this final rule
before the effective date, instead of complying with existing
requirements, if they desire and provided there is not a programmatic
limitation that would preclude such an action.
The exception to the 12-month phase-in policy is appropriate for
prohibited practices. These are already well known; many are in HUD's
current regulations and guidance and are prohibited by the EPA final
rule on training and certification, which was published on August 29,
1996. Many States already prohibit these practices, and other safer
paint removal methods are well known. (See Section III.E.2.g. of this
preamble.)
One commenter requested clarification of the effective date's
impact on pre-rule lead-based paint control activities already
undertaken and partially completed, and urged that it be made clear
that this ongoing work could be carried forward after the effective
date ``without revision.'' The Department's policy on this matter
varies somewhat from program to program, because of differences in
regulations and administrative procedures. Therefore the applicability
sections of subparts F through M include statements specific to each
program. In subpart F, pertaining to HUD-owned single family housing,
any property to be sold with a HUD-insured mortgage and which is
offered for sale on or after the effective date of this final rule must
comply with the requirements of the rule. In the case of subpart G,
pertaining to multifamily mortgage insurance, any property for which a
HUD or FHA commitment is made on or after the effective date must
comply with the rule. With regard to subpart H, project-based rental
assistance, properties that are receiving Section 8 assistance on or
after the effective date of this rule must comply. In the case of
competitively awarded grants under the HOPWA, Supportive Housing, and
Shelter Plus Care programs, the requirements apply to grants awarded
pursuant to NOFAs issued on or after October 1, 1999. For formula
grants under HOPWA, the requirements apply to activities for which
program funds are first obligated on or after September 15, 2000.
Subpart I states that HUD-owned multifamily properties and properties
for which HUD is mortgagee-in-possession must comply with the rule if
they are offered for sale or held or managed by HUD on or after the
effective date of this rule. Subpart J, pertaining to rehabilitation
assistance, includes program-specific information on the effective date
for projects funded under the HOME program, the Community Development
Block Grant (CDBG) programs, the Indian Housing Block Grant (IHBG)
program, HUD-administered homelessness assistance programs, and the
Indian Community Development Block Grant program. Project-specific
effective date policies for housing subject to subpart K, Acquisition,
Leasing, Support Services, or Operation, are the same as for subpart J.
With regard to public housing, subpart L states that all housing to
which the subpart applies is covered by the rule as of the effective
date of this final rule. Finally, subpart M, which pertains to tenant-
based rental assistance, states that housing receiving such assistance
becomes subject to the requirements of this rule at the time of an
initial or periodic inspection that occurs on or after the effective
date of this final rule. (The initial or periodic inspection referred
to in the previous sentence is the inspection conducted by the public
housing agency (PHA) or other administering agency to determine whether
the housing unit meets the requirements of the program. It is not a
lead-based paint inspection.)
D. Other General Issues
1. Policy on Abatement. Some commenters saw in the proposed rule an
undue emphasis on abatement, as opposed to more limited lead hazard
control measures. ``As such,'' one organization declared, ``the rule
appears inadequately protective of children's health, and unlikely to
realize the full benefits predicted by the Economic Analysis as
justification for the costs of compliance.'' Abatement should not be a
defined term in the rule, nor used at all, this commenter stated. The
recommended term was ``hazard abatement,'' used to mean ``any set of
measures to permanently eliminate lead-based paint hazards.'' This
should be the ``maximum requirement'' of the rule. While abatement of
intact lead-based paint would always remain an option, it need not and
should not be required, the commenter urged.
The same commenter urged that the definition of abatement should
not include reference to lead-based paint (i.e., intact paint). By
doing so, there is a deviation from the definition of abatement in
Title X itself. Failing to make the distinction between intact LBP and
lead hazards is likely to ``recreate * * * the scenarios that Title X
was supposed to end: Paralyzed non-compliance because of the costs and
burdens of performing abatement of non-hazardous intact LBP.''
A commenter who felt the rule didn't stress abatement enough was
``troubled by the rule's implicit acceptance that it is infeasible to
abate lead paint from housing.'' Arguing that the societal returns more
than justified the cost, the commenter declared that the obstacles to
abatement as a predominant policy were ``not economic, but political.''
HUD agrees that abatement should be targeted toward hazards, not
the mere presence of lead-based paint, except in public housing, where
lead-based paint abatement is required by statute, and for conversions
and major rehabilitation projects seeking HUD/FHA multifamily mortgage
insurance. The final rule defines abatement accordingly but retains the
existing lead-based paint abatement requirements for public housing.
The legislative history of Title X shows that Congress did not intend
for the existing public housing program requirements to be changed.
2. Cost of Compliance. Many commenters--particularly State and
local funded agencies, housing developers, and their national and
regional spokespersons--expressed serious concerns about the rule's
cost.
While many suggestions for change in details of the rule were
provided by these commenters, the tenor of their comments was not so
much against the rule as against the idea of carrying out its mandate
without separate funds earmarked solely for that purpose.
Some commenters felt that HUD had grossly underestimated the costs
of compliance and that these costs, in many circumstances, would divert
already-limited funding from its principal purpose of providing
shelter. Rural housing suppliers, especially, lamented the anticipated
problems the rule would bring. One commenter expressed the fear that
the rule would ``severely hamper rehabilitation in rural,
[[Page 50155]]
small communities and would potentially drive the cost of doing
business so high that many communities may decide that it is simply not
worth it to try and repair existing, older substandard housing.''
Some commenters suggested that the dangers of lead paint were
exaggerated or that local health department controls were adequate to
locate children with high blood lead levels and cope with the problem
on a case-by-case basis.
Other public agency commenters were more positively disposed toward
the goal of preventing childhood lead poisoning before a child is
poisoned, instead of waiting until the damage has already been done,
but still worried about funding. Typical of these comments was that of
a middle sized city with an active lead-hazard control program. Calling
the rule (and Title X) an ``unfunded mandate,'' the commenter cited the
staff costs associated with the rule's monitoring expectations, calling
them unrealistic: ``If additional funds were provided for hard and soft
rehabilitation as well as staff costs, this [rule] would be a good
policy initiative that we could fully support and implement. However,
without additional funds, * * * it presents a major problem for cities
trying to address an overall need for affordable housing.''
A frequent suggestion was that the rule would cause ``redundant and
unnecessary'' lead-based paint work to be performed. The focus, these
commenters argued, should be on reducing and controlling lead hazards
in units occupied by small children or children who had already been
lead poisoned.
A major housing industry organization asserted that the proposal
contains unnecessary impediments to the performance of paint repair
work and interim control tasks by employees of owners and managers, or
by the owners themselves, and urged the Department to eliminate these
wherever feasible.
One commenter, a municipal health department lead poisoning
prevention program, predicted that the proposed rule's changes would
``seem daunting'' to community-based agencies at first. The commenter
generally agreed with the rule's approach and predicted that compliance
costs would be ``minimal.'' The commenter said, however, that
``government support and leadership to ensure that training,
inspection/risk assessment services, and dust wipe resources are
available and sometimes subsidized could prove to be instrumental in
effective implementation.''
In response to these comments, HUD does not believe that the
childhood lead poisoning problem has been ``overblown,'' in light of
the results of the National Health and Nutrition Evaluation Survey
(described in Section II.A of this preamble, above) showing that
approximately 900,000 children still have blood lead levels equal to or
greater than 10 g/dL, the CDC level of concern. HUD also
disagrees that the rule should impose requirements only on units
housing young children. HUD believes that it is not practical in most
housing programs to expect managers to know when children are or are
not residing in particular units, especially in light of the
significant resident turnover rates and inconsistencies in program
administration among comparable units receiving comparable Federal
assistance. Title X holds that it is far better to identify and correct
lead-based paint hazards before a child is poisoned. Such prevention is
especially important, because some effects of lead poisoning appear to
be irreversible. The one exception to this policy is in the tenant-
based rental assistance programs, in which income certification
requirements facilitate the determination of childhood occupancy and
for which there is legislative history indicating Congressional concern
that lead-based paint requirements could deter landlords from program
participation.
With regard to the cost of the rehabilitation requirements, it is
important to note that the requirements of the rule are limited for
housing receiving up to and including $5,000 per unit in rehabilitation
assistance. Also, the option to perform standard treatments instead of
a risk assessment and interim controls may reduce costs in certain
situations. (See further discussion below in Section III.E.10 of this
preamble.) HUD intends to work closely with local housing and community
development agencies to further develop ways to efficiently meld lead-
based paint hazard reduction with rehabilitation.
With regard to the public housing program, HUD does not believe
that long-term annual cost increases will be significant, although
there will be one-time risk assessment and interim control costs in the
short term for some housing agencies. HUD encourages public housing
agencies to schedule completion of abatement of lead-based paint in
order to put this issue behind them.
3. TUse of Task Force Recommendations. Numerous commenters called
upon HUD to assure that the rule maintain consistency with the 1995
report of the Task Force on Lead-Based Paint Hazard Reduction and
Financing (Task Force), which was a Federal advisory committee
appointed by the Secretary of HUD pursuant to section 1015 of Title X.
Two recommendations of particular interest are the standards or
procedures referred to as ``essential maintenance practices'' and
``standard treatments.'' These procedures were directed toward rental
housing. Essential maintenance practices are the steps the recommended
steps that a landlord should take to reduce the risk of childhood lead
poisoning in pre-1978 dwelling units and associated common areas.
Standard treatments are more aggressive measures to assure that
possible lead-based paint hazards are controlled in older housing.
These procedures were not incorporated by name in the proposed rule,
although many of their elements or concepts were included.
In the final rule, HUD is requiring that all rental housing which
has a continuing financial or regulatory involvement with HUD must be
maintained in a manner similar to that recommended in the Task Force's
essential maintenance practices. Also, the Department has adopted the
concept of standard treatments, as set forth in the Task Force report,
as an option to the basic requirement of a risk assessment and interim
controls. This option is set forth in Sec. 35.120(a). Clearance testing
is required after standard treatments as well as interim controls.
Another Task Force recommendation mentioned favorably by some
commenters is the ``lead hazard control plan,'' which is a plan to be
developed by a property owner that lays out when and where certain
hazard control measures will be conducted within a residential
property. The plan allows an owner to prioritize the work and undertake
the most important tasks or dwelling units first, followed by lower
priority work later, as for example at apartment turnover. The proposed
rule did provide for a hazard reduction plan for multifamily properties
receiving more than $5,000 per unit in HUD project-based assistance.
Although the lead hazard control plan was intended to provide
property owners with flexibility in scheduling lead-hazard control
work, many commenters perceived the plan requirement as ``red tape'' of
limited value and questioned whether HUD would have the staff resources
and expertise to review and approve such plans on a timely basis. HUD
shares these concerns and, in the interests of regulatory streamlining,
has decided to
[[Page 50156]]
delete the plan requirement. The Department continues to believe that
it would be a useful document for property managers, especially those
with responsibility for large multifamily developments, and encourages
owners to develop such plans. The American Society for Testing and
Materials (ASTM, West Conshohocken, PA 19428-2959) has developed a
Standard Guide for Evaluation, Management, and Control of Lead Hazards
in Facilities, and is developing an accompanying user guidebook. These
materials can provide the basis for developing a lead hazard control
plan. They are particularly appropriate for owners of multifamily
dwellings.
4. De Minimis Exceptions. The proposed rule included de minimis
levels of paint deterioration, consistent with the HUD Guidelines,
below which no action would be required. These de minimis levels were
defined as not more than 10 square feet of deteriorated paint on an
exterior wall; not more than 2 square feet on an interior component
with a large surface area including, but not limited to, interior
walls, ceilings, floors and doors; or not more than 10 percent of the
total surface area on an interior or exterior component with a small
surface area including, but not limited to, window sills, baseboards
and trim.
Commenters objected to the de minimis levels on four grounds: (1)
That the de minimis exception is arbitrary and not supported by
science; (2) that the levels are too large, potentially allowing a
total of over ten square feet of defective paint per room (counting
four walls plus a ceiling plus small components); (3) that some owners
or inspectors may use the de minimis exception as an excuse for
overlooking hazardous conditions; and (4) that it is likely to shift
the attention of workers from the importance of practicing lead hazard
control and maintaining painted surfaces in a lead-safe manner to
measuring the size of defective paint surfaces in order to document
that surfaces fall above or below the de minimis level.
HUD acknowledges the merit of these comments, and after careful
consideration has decided to eliminate the de minimis exception for
deteriorated paint from the final rule. All deteriorated lead-based
paint (either known or presumed to be lead-based paint) must be
addressed. This will simplify the rule's implementation considerably.
HUD did retain, however, a de minimis exemption for safe work practices
and clearance, which is consistent with the EPA provision at 40 CFR
745.227(e) that allows dry scraping during abatement on surfaces
totaling no more than 2 square feet per room or 20 square feet on
exterior surfaces. This de minimis exemption is separate from the
safety-related exception allowing dry scraping in conjunction with the
use of heat guns or within 1 foot of electrical outlets; that is, the
area covered by the safety-based exception is not part of the area
covered by the safe work practices de minimis exemption).
5. Distinction Between HUD Programs and Those of Other Federal
Agencies. Several commenters asserted that the rule distinguishes
between HUD-assisted housing and that assisted by other Federal
agencies without any statutory basis and without providing any
justification. The Department's response is that, although the
Secretary is given authority to develop regulations for other agencies
(with respect to project-based assistance and Federally-owned
property), HUD cannot and should not make lead-based paint policy
decisions for other agencies beyond what is set forth in Title X. HUD
does not have the knowledge of other agencies' housing programs that is
necessary to draft detailed lead-based paint regulations for all other
Federal agencies, and achieving consensus among all agencies on such
regulations is unlikely. The sections concerning HUD project-based
assistance and HUD-owned property, therefore, should remain separate
from the sections provided for other agencies. Other Federal agencies
can be expected to develop their own regulations or guidance, using
HUD's regulations as a starting point.
6. Response to Children with Lead Poisoning. The Department's
primary focus in this rule is on prevention of childhood lead
poisoning, not on case management of children who have already been
poisoned. Title X specifically calls for the identification and
correction of hazards in all housing. Nevertheless, HUD feels special
requirements are needed for lead-poisoned children who have already
been poisoned by lead-based paint hazards. HUD cannot ignore the
possible connection between a child's blood lead level and the
condition of the dwelling unit where the child lives, particularly in
view of research on the relation of dust-lead to blood-lead levels (see
Section III.E.15.b of the preamble, below). Therefore, in housing where
the Federal Government maintains a continuing financial or ownership
relationship, requirements were included in the proposed rule to
evaluate and reduce lead-based paint hazards when a child with an
elevated blood lead level (EBL) is identified. Such requirements have
existed in current HUD regulations for many years. In the final rule,
as in the proposed rule, they are included in the subparts pertaining
to project-based rental assistance, disposition of HUD-owned and
mortgagee-in-possession multifamily housing, public housing, and
tenant-based rental assistance.
Commenters addressing EBL-related requirements raised several
different concerns: The measurement standards that trigger
environmental intervention, the terminology used to refer to such a
level, information exchange requirements between housing authorities
and health departments, hazard control requirements for units occupied
by young children with an EBL condition, reoccupancy requirements for
dwelling units that were previously occupied by an EBL child but have
not undergone evaluation or hazard reduction, relocation requirements,
and the potential for discrimination by landlords against families with
young children generally and EBL children in particular.
In the proposed rule, HUD defined ``elevated blood lead level (EBL)
(requiring the evaluation of lead hazards)'' as meaning ``an excessive
absorption of lead that is a confirmed concentration of lead in whole
blood of 20 g/dL (micrograms of lead per deciliter of whole
blood) for a single venous test or of 15-19 g/dL in two
consecutive venous tests taken 3 to 4 months apart.'' One commenter
argued that HUD should not use a standard other than 10 g/dL,
which is the basic CDC level of concern, because it is ``illogical to
take no action when we know a child is poisoned * * * but instead to
wait until the child is more poisoned,'' and because defining an EBL at
a level higher than that known to cause adverse effects will create
potential liability for public housing authorities and assisted owners.
HUD has consulted again with CDC and has concluded, as it did prior
to issuance of the proposed rule, that CDC did not and does not intend
to recommend a full home inspection or assessment in response to blood
lead levels below 15 g/dL. CDC advises that a blood lead level
of 10-14 g/dL should trigger monitoring, certain parental
actions, and perhaps community-wide education, but not hazard control
in an individual child's home. CDC recommends follow-up blood lead
testing of such children in about 3 months, the provision of
information to parents on lead hazards, nutrition and housekeeping if
appropriate, and the taking of an environmental history to try to
identify
[[Page 50157]]
an obvious source of lead exposure (CDC 1997).
EPA noted that it is confusing to define the term ``elevated blood
lead level'' or ``EBL'' differently than normal usage. The agency
pointed out that CDC, in their 1997 screening guidelines, uses the term
to refer 10 g/dL or greater and that most public health
agencies and others in the field of lead poisoning prevention do the
same. HUD agrees that this is potentially confusing and has therefore
substituted in the final rule the term ``environmental intervention
blood lead level'' to replace ``elevated blood lead level'' or ``EBL''
when the latter terms refer to the blood lead level requiring
evaluation and hazard reduction of the child's home.
One State public health department urged HUD to modify the rule's
standards for determining when environmental intervention is needed.
Requiring tests showing two blood lead levels of 15-19 micrograms per
deciliter in consecutive tests three to four months apart is
``problematic,'' the commenter said, because many children do not get
follow-up tests at the required three-four month interval, but rather
more frequently--or less. Two tests showing levels of 15 or higher,
whether or not consecutive, and whether or not at a fixed time
interval, should be adequate to identify the child, and it is important
that the rule not define the test intervals too strictly. It is not in
the best interests of the child to recognize test results that come in
only at precise intervals, the commenter said. A child may have two
tests of 15-19 g/dL, but because of seasonal variations in
lead exposure, the high-level results may not be consecutive. At least
two commenters recommended that this standard should be consistent with
CDC guidance.
HUD agrees. In the final rule, the Department has defined
environmental intervention blood lead level to conform to the new
guidelines by CDC issued in 1997 (CDC 1997b). The revised definition is
``a confirmed concentration of lead in whole blood equal to or greater
than 20 g/dL (micrograms of lead per deciliter) for a single
test or of 15-19 g/dL in two tests taken at least 3 months
apart.'' This revision removes the word, ``consecutive,'' and allows
for nonconsecutive readings that are more than 3 months apart. The
final rule has also removed the requirement that blood lead levels be
determined only by venous blood specimens. This decision is best left
to the child's health care provider, and may be affected by
technological advances. HUD expects housing agencies, grantees,
property owners, and other parties to which this rule applies to rely
on medical health care providers where judgment is required in
interpreting this definition.
Another issue is how best to make housing agencies aware of when
there is a child with an environmental intervention blood lead level
living in a dwelling unit under tenant-based rental assistance or under
another program to which the requirements of subpart M of this rule
apply. The proposed rule required that, to the extent practicable, the
housing agency or other administering agency would attempt to obtain
annually from the State or local health department the names and
addresses of children less than age 6 identified with environmental
intervention blood lead levels. The housing agency was then required to
match this information with the names and addresses of families
receiving Federal assistance. If a match occurred, the agency was to
require a risk assessment and interim controls in the child's home.
These requirements are similar to those currently in HUD regulations
pertaining to tenant-based rental assistance. They were issued in
response to the United States General Accounting Office report entitled
``Children in Section 8 Tenant-Based Housing are not Adequately
Protected'' (GAO/RCED-94-137, May 13, 1994). The intent of this
requirement is to ensure that families with young children that receive
tenant-based rental assistance are obtaining housing free of lead-based
paint hazards. At the same time, the CDC is urging local public health
departments to provide environmental intervention blood lead level-
related information to housing agencies.
A few commenters indicated that they had encountered difficulty in
securing the cooperation of health authorities in making these records
available because of the authorities' concerns about the privacy of
medical information. While these access problems can be overcome, one
commenter said, by securing a release signed by the child's parent or
guardian, there are other concerns besides the question of invasion of
privacy. If the agency administering the tenant-based assistance
program has information concerning the environmental intervention blood
lead level status of a family's children and the information is
disclosed to potential landlords, the information ``becomes a barrier
for the family in its housing search,'' because some landlords may
illegally refuse to rent to the family.
Several other commenters expressed concern about the potential for
housing discrimination against families with children in general, and
those with children with identified environmental intervention blood
lead levels in particular. These comments ranged from suggestions to
penalize the landlords involved to indications that, in the absence of
funding assistance, it was unfair to ``penalize (owners) for
participating in the Section 8 (Voucher and Certificate) Program in a
way not required of owners in the private market.'' (Emphasis in
original.) In response, HUD believes that the environmental
intervention blood lead level requirements in this rule are not in fact
fundamentally different than those covering private-sector owners who
do not receive subsidies. Local ordinances often permit health or
housing departments to order lead hazard control work in any home where
an environmental intervention blood lead level child is identified. For
an explanation of the antidiscrimination provisions of the Fair Housing
Act, see Section IV.D.7 of this preamble.
The Department has concluded that it is very important that local
housing agencies know when there is a child with an environmental
intervention blood lead level residing in an assisted unit and that
owners comply with requirements designed to make the units free of
lead-based paint hazards. It is well known that, while local health
departments are able to identify poisoned children, they often do not
have the resources to correct the cause.
HUD is making, therefore, the following changes to the requirements
pertaining to exchange of information on environmental intervention
blood lead level conditions:
(1) The housing agency or other local agency administering tenant-
based rental assistance must attempt at least quarterly (instead of
annually as in the proposed rule) to obtain from the State or local
public health department, or the Indian Health Service as applicable,
the names and/or addresses of children of less than 6 years of age with
environmental intervention blood lead levels. This change is being made
to assure that poisoned children will receive help on a more timely
basis. The Department encourages health departments and housing
agencies to voluntarily enter into agreements to exchange information
more frequently, e.g., monthly, especially in jurisdictions in which
childhood lead poisoning is a frequent occurrence in housing occupied
by families receiving tenant-based rental assistance.
(2) Also on a quarterly basis, the housing agency or other local
agency administering the tenant-based rental assistance must provide
health departments with addresses of assisted units (as well as attempt
to obtain
[[Page 50158]]
addresses of environmental intervention blood lead level children from
the health department), except that such a report to the health
department is not required if the health department states that it does
not wish to receive it.
(3) The address match may be done by either the housing or the
health agency. HUD's intent is to encourage workable cooperative
arrangements between the two types of agencies for the purpose of
matching environmental intervention blood lead level and housing
assistance information on a timely basis.
With regard to the evaluation and hazard reduction that must be
done if a child with an environmental intervention blood lead level is
found to be residing in a HUD-assisted or HUD-owned unit, the final
rule sets one uniform requirement for all programs: risk assessment and
interim controls, followed by ongoing lead-based paint maintenance. One
commenter complained that the proposed rule failed to require anything
beyond interim controls--a standard, the commenter said, that is ``too
low and ineffective in the face of a poisoned child.'' Current
information shows that interim controls are as effective as abatement
methods in the short term and will continue to provide adequate
protection if continuing maintenance standards are met (National Center
1998). In the final rule, ongoing lead-based paint maintenance is
required in all HUD housing programs for which there is also a
requirement that interim controls be conducted in response to a case of
a child with an environmental intervention blood lead level. To ensure
that these requirements are not avoided, the rule states that the
requirements apply regardless of whether the child with the
environmental intervention blood lead level is or is not still living
in the assisted unit. Furthermore, it is HUD's intent that the
requirements apply to the unit even if no child of less than six years
of age resides in the unit, because the requirements were triggered
when a child was in residence. Also, if a public health department
performs the evaluation of the dwelling unit or, after the hazard
reduction work is performed, certifies the unit to be lead safe, it is
not necessary for the housing agency or other designated party to
perform those functions. Finally, in the case of housing to which
subpart M (tenant-based rental assistance) applies, if the hazard
reduction is not performed, the unit does not meet Housing Quality
Standards.
Some local housing agencies have asked for guidance on what their
response should be to information on a child's blood lead level if the
information is brought to the agency by a party other than a medical
health care provider. In response, the Department is including a
provision requiring verification of such data with the public health
department or other medical health care provider. If it is verified
that a child has an environmental intervention blood lead level, the
agency, owner, or HUD (as the case may be) must complete a risk
assessment and conduct interim controls of identified hazards.
7. Fair Housing Requirements. Several commenters expressed concern
about the potential for housing discrimination against families with
children in general, and those with children with environmental
intervention blood lead levels in particular. Therefore HUD is
providing the following discussion of the application of the Fair
Housing Act and other laws pertaining to persons with disabilities to
lead-based paint issues.
The Fair Housing Act prohibits discrimination in housing based on
race, color, national origin, religion, sex, disability, and familial
status. Familial status, for purposes of the Fair Housing Act, includes
children under 18 (regardless of age or number), pregnant women, and
people seeking custody of children under 18. Only providers of housing
that meets the specific definition of housing for older persons may
refuse to rent to families with children. Children with elevated blood
lead levels and persons with Multiple Chemical Sensitivity (MCS) may
fall under the definition of persons with disabilities. Among the
actions prohibited under the Fair Housing Act are any action which
differentiates on a prohibited basis for any of the following: Refusal
to rent or sell housing; refusal to negotiate for housing; making a
dwelling unavailable; denying a dwelling; providing different housing
services or facilities; falsely stating that housing is not available
for inspection, sale, or rental; refusing to make a mortgage loan;
imposing different terms or conditions on a loan; setting different
terms, conditions, or privileges for sale or rental of a dwelling;
segregating a portion of the population into special buildings or
areas; maintaining different lease conditions; and advertising or
making any statement that indicates a limitation or preference based on
any prohibited basis of the Fair Housing Act.
Based on this law, it is illegal for owners of housing to
discriminate against families with children, or EBL children, even if
the unit is known to have lead-based paint hazards. The prohibitions of
the Fair Housing Act would further make it inadvisable to ask questions
about EBL status, pregnancy, or intentions to become pregnant.
Restrictive covenants against children, including EBL children, are
also illegal. Therefore, no renter or buyer may be asked to sign a
statement that a child, or EBL child, is not expected to reside in the
dwelling. Owners of rental housing may eliminate lead-based paint
hazards in a percentage of units and hold those units available for
families with children and affirmatively market them to appropriate
families. An owner may also tell families of the danger of moving into
a unit which has not been treated and recommend an alternative
comparable unit. In no case may an owner refuse to allow a family to
occupy the unit, however, because of the presence of a child or require
that a family move because lead is found. Laws against discrimination
will be enforced by HUD.
Title II of the Americans With Disabilities Act (ADA) establishes a
clear and comprehensive prohibition against discrimination on the basis
of disability in State and local government services. Section 504 of
the Rehabilitation Act of 1973 provides for nondiscrimination against
persons with disabilities in Federally-assisted housing. Both laws
define a person with a disability as any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of an impairment, or is regarded by others as
having such an impairment. Under both laws, EBL children and persons
with MCS may fall under the definition of persons with disabilities.
Among the actions prohibited under Title II of the ADA and Section 504
are those which discriminate, on the basis of disabilities, in
Federally-assisted programs, services, and activities. Such actions
include a refusal to (1) allow participation in a program, service, or
activity; (2) provide programs, services and activities in an
integrated setting, unless separate or different measures are necessary
to ensure equal opportunity; (3) eliminate unnecessary eligibility
standards or rules that deny an equal opportunity to enjoy a program,
service or activity unless ``necessary'' for the provisions of the
program, service or activity; (4) make reasonable modifications in
policies, practices, and procedures that deny equal access, unless a
fundamental alteration in the program would result; (5) make reasonable
accommodations, unless an undue burden or fundamental alteration would
result, e.g., furnish auxiliary aids and services when necessary to
ensure effective
[[Page 50159]]
communication (e.g., interpreters, or accessible formats, such as
braille, large print, or audio cassette) and/or provide notice to and
relocate residents with MCS prior to removing lead-based paint hazards
with harmful toxic chemicals; and (6) operate programs so that, when
viewed in their entirety, they are readily accessible to, and usable
by, individuals with disabilities. A covered housing provider must not
impose special charges to pay for measures necessary to ensure
nondiscriminatory treatments, such as relocation expenses when
necessary to remove lead-based paint hazards, or making modifications
to provide accessibility. Finally, it is unlawful under these laws for
a covered housing provider to make inquiries into the nature and
severity of a person's disability, although that information may be
volunteered when a reasonable accommodation is requested.
8. Qualification Requirements. The proposed rule required that most
lead-based paint inspections, risk assessments and abatements be
conducted by individuals or firms that are certified in accordance with
national EPA requirements for lead-based paint activities developed
pursuant to sections 402 and 404 of the Toxic Substances Control Act
(TSCA). EPA published a final rule on August 29, 1996 that takes full
effect on August 29, 1999. After that time, all lead-based paint
inspections, risk assessments, and abatements nationwide will have to
be conducted in accordance with the EPA work practices standards at 40
CFR 745.227 or State or tribal standards that have been authorized by
EPA under procedures set forth at 40 CFR part 745, subpart Q.
Recognizing that there might be temporary limitations on the supply of
certified personnel, HUD proposed to provide for the possibility of
temporary qualifications.
The proposed rule included two apparent exceptions to this general
certification requirement. Public and Indian housing agencies (``HAs'')
conducting dust and soil testing for public and Indian housing were not
required to be certified in accordance with the EPA requirements. The
Department pointed out that HAs were required to complete lead-based
paint inspections by December 6, 1994, and that many HAs have already
taken the initiative to conduct risk assessments in housing projects.
Further, HUD did not extend the certification requirement to dust
testing conducted by HAs for the Section 8 tenant-based rental
assistance program. The Department, however, did require that a risk
assessment conducted in response to an identified environmental
intervention blood lead level child be conducted by a certified risk
assessor.
Certification requirements in the proposed rule were somewhat
different for interim controls than for abatement. Recognizing that the
EPA regulations do not cover interim controls, HUD proposed that all
workers performing interim controls be trained in accordance with the
basic Occupational Safety and Health Administration (OSHA) hazard
communication standard at 29 CFR 1926.59 and supervised by a certified
abatement supervisor.
Comments on the qualifications requirements dealt with five issues:
(1) Whether housing agency personnel had to be certified to perform
dust and soil testing; (2) the availability of qualified personnel and
firms, and temporary qualifications in case of an inadequate supply of
certified personnel; (3) qualification requirements for interim
controls; (4) the independence of the clearance examiner; and (5) the
authority of a trained technician to perform clearance examinations.
EPA objected to the exemption of public and Indian housing
authorities from certification requirements related to dust and soil
testing. EPA did not accept HUD's rationale for suggesting that
noncertified personnel could perform lead-based-paint-related functions
for public and Indian housing agencies, other than under emergency
circumstances. On the other hand, another commenter said he was
``pleased'' that dust testing would be permitted in that program by
non-licensed Housing Quality Standards (HQS) inspectors trained in
lead-hazard evaluation. The commenter recommended that ``non-licensed,
but trained'' rehabilitation inspectors similarly be allowed to
accomplish clearance testing in the funded rehabilitation programs. A
public interest commenter remarked that ``HUD should begin the process
of educating these workers at once, so that a qualified work force is
available when the requirements go into effect.''
A local funded agency indicated that its State law would not allow
Section 8 housing inspectors to perform inspections requiring dust
wipes, and the agency went on to say that licensure for inspectors
costs $250, renewable every two years, and that risk assessment
training ran to $300 per person. Costs to housing authorities, and to
landlords, for importing licensed personnel to perform inspections and
assessments were regarded as prohibitive by the commenter.
The Department has decided to require in the final rule that dust
and soil testing in public housing be conducted by personnel certified
in accordance with an EPA-authorized State or tribal program or EPA
regulations, a provision that is also in accordance with many State
laws. Also, dust testing in housing assisted through tenant-based
rental assistance will not be required at the evaluation stage, so the
qualification issue for that function is no longer relevant; but
clearance of the dwelling unit (or, in some cases, only the worksite)
will be required if paint stabilization, interim controls or abatement
is required. See the discussion below of the authority of trained
technicians to perform clearance examinations.
There was much concern among commenters about the availability of a
qualified (and affordable) work force of persons certified (or
otherwise adequately trained) to perform the necessary work called for
in the rule. Rural housing suppliers claimed such trained people would
have to be imported from far away--and at premium rates. There were
also calls for reciprocity for State-approved training programs until
the EPA-approved programs are implemented.
HUD expects that most States will have EPA authorized certification
programs by the effective date of this rule. Those that do not will be
covered by the EPA certification program directly. After August 29,
1999, inspections, risk assessments and abatements must be done in
accordance with the standards of EPA or an authorized State or tribal
program. While this fact does not in itself eliminate the possibility
that there will be shortages in the supply of certified personnel for
inspections, risk assessments and abatements in some parts of the
country, it increases the likelihood that the certification mechanisms
will be in place in most of the nation when this rule becomes
effective. At the time of this writing, 37 States have already enacted
lead-based paint hazard control laws. In the final rule, the Department
has made one change to the qualifications requirements that may result
in increased availability of persons qualified to perform clearances.
See the discussion below of the authority of technicians to perform
clearance examinations.
The Department intends to monitor the availability of qualified
personnel. One source of information is likely to be the ``Lead
Listing,'' a nationwide listing of inspectors and risk assessors
developed by the National Lead Assessment and Abatement Council (NLAC)
with HUD assistance. The
[[Page 50160]]
``Lead Listing'' can be accessed by calling 1-888-LEADLIST (this is a
toll-free number) or can be found on the Internet at
www.leadlisting.org. HUD notes the constructive suggestion by one
commenter that such monitoring should be done in cooperation with the
States, as is being done with the development and maintenance of the
Lead Listing. HUD would also expect to coordinate with EPA in the
development of such information and in determining whether any further
Federal response is needed.
One national organization questioned the requirement that workers
performing ``interim control treatments'' be supervised by a certified
abatement supervisor. Arguing that the definition of ``interim
controls'' was too broad, the commenter recommended breaking the
definition down so that ``painting, maintenance and similar routine
tasks'' could be performed without a certified supervisor. Such a
change, the commenter said, would be in accord with Congress' intent
that certification requirements not be imposed on interim control
workers, and the change would decrease routine property maintenance
costs. A similar complaint was directed at the requirement that the
appropriate worksite preparation be determined by a certified risk
assessor, abatement supervisor or planner/designer. The commenter
feared that the rule could be construed as requiring professional
worksite design for ``mere paint repair work and for such basic interim
control tasks as rehanging of doors. . .'' and asked that the rule be
clarified to eliminate the worksite preparation requirement for interim
control work.
Noting that the Task Force had recommended a one-day training
course for maintenance supervisors, one commenter advocated HUD/EPA
cooperation in developing a short course geared for maintenance workers
that is inexpensive, requires one day or less to complete, and is
frequently offered. Other commenters endorsed the short training course
idea. The idea was a popular one, not only among cost-conscious funded
agencies, but with public interest organizations as well.
A national environmental group disagreed with the emphasis on
limiting the occasions for use of expert personnel. All hazard control
activities, including paint repairs, should be conducted by trained
personnel, the organization declared. A landlord who has permitted
paint to become deteriorated to the point that it presents a lead
hazard is ``unlikely to have the skills or inclination to perform a
paint repair in a manner that does not increase exposure,'' the group
said.
HUD agrees that persons performing interim controls should be
prepared to protect themselves and the occupants from exposure to lead,
should know how to protect interior and exterior environments from
contamination and how to clean up the worksite, and should understand
the importance of an independent clearance examination. In the final
rule, HUD is requiring that persons performing interim controls,
including paint stabilization, be trained in lead hazards in accordance
with OSHA regulations at 29 CFR 1926.59 and either be supervised by a
certified abatement supervisor (the requirement of the proposed rule)
or successfully complete one of the following training courses: (1) An
accredited abatement supervisor course; (2) an accredited lead-based
paint worker course; (3) the Lead-Based Paint Maintenance Training
Program, developed by the National Environmental Training Association
for EPA and HUD; (4) the Remodeler's and Renovator's Lead-Based Paint
Training Program, prepared by HUD and the National Association of the
Remodeling Industry (NARI); or (5) another course approved for this
purpose by HUD after consultation with EPA. HUD intends that any person
performing hands-on, interim controls work on the worksite in
compliance with the final rule must have satisfied one of the optional
requirements. With regard to the OSHA training requirements, OSHA
regulations at 29 CFR 1926.62 require that workers exposed to airborne
lead below the OSHA action level of 30 g/cu.m. be trained
under the hazard communication construction standard, which is at 29
CFR 1926.59. If airborne lead is at or above the action level, OSHA
requires a more complete training program. Workers performing interim
controls of lead-based paint hazards are not expected to be exposed to
airborne lead above 30 g/cu.m. Therefore the final rule states
that the required training must be in accordance with 29 CFR 1926.59.
A national housing organization questioned the language barring a
clearance examiner from being ``affiliated with, paid, employed or
otherwise compensated by the entity performing the hazard reduction and
cleanup.'' The provision assumes, the commenter said, that the hazard
reduction work has been performed by an independent contractor. In the
case of paint stabilization and interim controls, this assumption will
often be incorrect. Where only paint stabilization and simple interim
controls are required, it was argued, the rule should permit owners and
their employees to perform the work themselves. The ``independence''
provision would make this impossible. The commenter recommended, first,
eliminating the clearance testing requirement for hazard reduction work
involving only ``basic interim controls.'' A second solution would be
to remove from the quoted provision the words ``paid'' and ``or
otherwise compensated'', so that clearance testing by employees and
affiliates of a contractor would be prohibited, but the owner could
retain an independent, certified risk assessor to perform the clearance
testing work.
HUD agrees that a property owner or manager should be able to
employ both hazard reduction and clearance personnel. The final rule
requires that clearance examinations and hazard reduction activities be
conducted by entities that are independent of each other unless the
owner or designated party uses qualified in-house employees to conduct
clearance. The final rule, however, does not permit the same individual
employee to conduct both hazard reduction and clearance, due to the
clear conflict of interest this would pose.
As mentioned, HUD has made a change in the final rule that may
increase the availability of persons qualified to perform clearance
examinations, and thus may reduce the cost. The proposed rule required
that clearances be performed by either a certified risk assessor or a
certified lead-based paint inspector. One group of commenters urged
that a technician with less training than a risk assessor or inspector
be authorized to perform clearances in situations where interim
controls of lead-based paint hazards or ongoing lead-based paint
maintenance has been conducted. These commenters argued that the skills
needed for the clearance function are modest compared to those required
for lead-based paint inspections or risk assessments and, further, that
the speed and affordability of clearance is of critical importance to
the practical workability of the system of requirements to be set forth
in the rule.
In the conference report on the VA-HUD-Independent Agencies
Appropriations Act for FY 1999, the Congress urged EPA ``to develop a
relevant one-day sampling technician training course and to encourage
the recognition of this discipline.'' As of this writing, it is HUD's
understanding that EPA plans to develop such a course and that an
important purpose of the course will be to train people to perform
clearance examinations. Therefore, anticipating that trained clearance
technicians may be available, HUD is
[[Page 50161]]
providing in the final rule two ways they could perform clearances
following interim controls or maintenance: first, as a technician who
is uncertified or unlicensed and whose work must be approved in writing
by a certified risk assessor or lead-based paint inspector; or, second,
as a technician who is certified or licensed to perform clearance
examinations without the approval of a risk assessor or inspector.
Uncertified or unlicensed clearance technicians must have successfully
completed a training course on clearance examinations (or similar
title) that is developed or accepted by EPA or by a State or tribal
program authorized by EPA pursuant to 40 CFR part 745, subpart Q (the
EPA regulations implementing TSCA section 404). The course must be
given by a training provider accredited by a State, Indian tribe or the
EPA for training in lead-based paint inspection or risk assessment. HUD
assumes that certified or licensed clearance technicians would also be
required to complete such training. Certification or licensing of
clearance technicians must be by a State or Indian tribe or EPA.
With regard to the training course taken by an unlicensed or
uncertified clearance technician, there are several possible
arrangements that are acceptable to HUD under this rule. The course can
be developed by EPA, or it can be developed by a State or Indian tribe
with a program authorized by EPA pursuant to TSCA section 404. A State
or Indian tribe may adopt or accept a course prepared by another EPA
authorized State or tribe. While the training provider from whom the
course is taken must be accredited by EPA or an EPA-authorized State or
tribal program, it is not necessary from HUD's point of view that the
technician be trained within the State or Indian nation where the
clearance is being performed or by a training provider accredited by
that State or tribe. The ultimate responsibility for quality control
rests with the certified lead-based paint inspector or risk assessor
who approves the work of the technician and signs the clearance report.
Under this policy, an unlicensed or uncertified but properly
trained clearance technician could perform a clearance examination on
site, prepare the report, and send the report (by e-mail, fax, or other
method) to a certified risk assessor or certified lead-based paint
inspector, who may be located in another area. The risk assessor or
inspector could review and sign the report and forward it to the
client, taking responsibility for the quality of the clearance
examination and report. The Department assumes that the risk assessor
or lead-based paint inspector would require the technician to work as
an apprentice until the inspector or assessor is satisfied that the
technician's work is of satisfactory quality, but HUD leaves that
process and decision to the risk assessor or inspector. In the rule,
HUD places no restrictions on the scope or scale of clearance
examinations that could be performed in this manner.
HUD is setting a limitation, however, on the authority of a
certified or licensed technician who is taking full responsibility for
the clearance examination without written approval of a risk assessor
or lead-based paint inspector. In this case, the authority extends,
under the HUD rule, only to clearances of single family units or
individual units and associated common areas in a multi-unit property.
The authority does not extend to clearance examinations of multifamily
properties, or parts thereof, in which the clearance examiner engages
in random sampling of dwelling units and common areas. In the opinion
of the Department, it is unlikely that a one-day course will be
adequate to teach all the techniques, procedures and judgments required
to conduct random sampling of dwelling units and common areas in large
multifamily clearance examinations. Under the HUD final rule, however,
clearance technicians may perform multifamily clearances involving
random sampling with the written approval of a certified risk assessor
or lead-based paint inspector. Furthermore, certified clearance
technicians may, without written approval of an inspector or risk
assessor, conduct clearance examinations of any number of individual
dwelling units and associated common areas in multifamily properties,
provided results from the units and areas in which clearance
examinations are conducted are not used to represent units and areas
for which no examination or testing has been conducted.
Under this policy on technicians, people can prepare themselves to
perform clearances with less investment in training and equipment than
is required to become a risk assessor or lead-based paint inspector.
HUD is hopeful, therefore, that the policy will contribute to an
increased availability of persons authorized to perform clearances and
a reduction in the cost of clearances. The policy retains the reliance
on a certification or licensing process. Certification by a State or
other entity provides a way to take action against fraudulent or
otherwise unprofessional clearance examiners.
HUD recognizes that performance of clearance examinations by a
certified or uncertified technician may not be permissible under some
State or tribal regulations, even with the written approval of a risk
assessor or lead-based paint inspector. Where that is the case, the
State or tribal regulation would apply. HUD also recognizes that EPA
may, in the future, establish certification procedures for clearance
technicians (or a similar discipline) and, at that time, may make it
illegal nationwide for uncertified technicians to perform the on-site
work of a clearance examination. However, HUD thinks it will be
efficient to have trained technicians, certified or not, working with
higher level certified personnel and encourages other regulatory
entities to permit it.
9. Paint Stabilization vs. Paint Repair. The proposed rule
established a procedure called ``paint repair,'' which was a repainting
of a deteriorated paint surface using safe work practices to minimize
the generation of dust, protect occupants and the environment, and
leave the site clean. The procedure was widely used in the rule; it was
required in the subparts or sections applicable to single family
mortgage insurance, disposition of HUD-owned single family property
(without sufficient appropriations), multifamily insured property,
disposition of HUD-owned and mortgagee-in-possession property (without
sufficient appropriations), residential property receiving an average
of less than $5,000 per unit in Federal rehabilitation assistance, CPD
non-rehabilitation, and tenant-based rental assistance.
Many commenters questioned this procedure. The most common position
was a caution against leaving anything in the rule that implied that
``mere overpainting'' of surfaces, without addressing the substrate,
could ever be considered an appropriate course of action. A typical
comment was the following: ``HUD's final regulations should require
that whenever deteriorated paint is repaired, the cause of the
deterioration must be corrected and the substrate stabilized.'' Another
commenter argued that paint repair, by itself, was ``inconsistent with
the HUD Guidelines.''
HUD agrees that it can be ineffective to try to put paint on a
damaged substrate, such as crumbling plaster. Old lead-based paint on
such a surface could shortly become deteriorated again after
repainting. On the other hand, HUD is aware that substrate
stabilization requires case-by-case judgment in the field as to when
substrate repair is necessary and what extent and method of repair is
[[Page 50162]]
appropriate. There is reason to be concerned that cautious
administrators may sometimes insist on repairs that are overly
expensive or that others will not correct the underlying problem.
After careful consideration, the Department has eliminated ``paint
repair'' throughout the final rule and instead is requiring ``paint
stabilization,'' which calls for the repair of any physical defect in
the substrate of a painted surface or component that is causing
deterioration of the surface or component. It should be noted that the
purpose of this requirement is not complete renovation but merely to
try to assure that the integrity of the repainting will survive for a
reasonable period of time. Also, if a substrate is being damaged
because of a water leak, repair of the leak would be necessary in any
case to meet housing or building codes. In situations in which a costly
repair may be necessary to stabilize a damaged substrate, designated
parties should always determine through paint testing whether or not
the surface has lead-based paint. Frequently the paint will not be
leaded at the Federal standard of 1.0 mg/sq.cm., so paint stabilization
will not be required under this rule. If the deteriorated paint is
lead-based paint, the designated party may consider alternative methods
for controlling the hazard, such as enclosure of the surface.
E. Subparts
1. Subpart A--Disclosure of Known Lead-Based Paint Hazards Upon
Sale or Lease of Residential Property. This subpart contains the
requirements for disclosure of known lead-based paint and/or lead-based
paint hazards in the sale or lease of target housing. This joint HUD/
EPA regulation was promulgated as required by section 1018 of Title X
(42 U.S.C. 4852d), and was originally published at 24 CFR part 35,
subpart H. Subpart H has been transferred unchanged to this subpart A,
so the regulations implementing sections 1012 and 1013 of Title X can
be published in consecutive subparts B, C, D, F through M, and R.
2. Subpart B--General Lead-Based Paint Requirements and Definitions
For All Programs. This subpart sets out general requirements for
federally owned residential property and housing receiving Federal
assistance.
a. Definitions. In the proposed rule, HUD used the definitions,
where possible, that were included in section 1004 of Title X (42
U.S.C. 4851b). In cases where the statute either failed to define
terms, or where the definition was inadequate for the purpose of a
regulation, the Department drew definitions from the HUD Guidelines,
existing HUD or EPA regulations, and from definitions compiled and set
forth by the American Society for Testing and Materials (ASTM), West
Conshohocken, PA 19428-2959, in a document entitled ``Standard
Terminology Relating to Abatement of Hazards from Lead-Based Paint in
Buildings and Related Structures'' (ASTM Standard E 1605-94).
In most cases public comments on definitions concerned the scope of
the definition rather than the meaning, and the commenters wanted the
scope to be either expanded or limited. In response to comments, the
definition of residential property was revised in the final rule to
more precisely define its scope to ``a dwelling unit, common areas,
building exterior surfaces, and any surrounding land, including
outbuildings, fences, and play equipment affixed to the land belonging
to an owner and available for use by residents but not including land
used for agricultural, commercial, industrial, or other non-residential
purposes, and not including paint on the pavement of parking lots,
garages, or roadways'' rather than the proposed rule language of ``a
dwelling unit, common areas and any surrounding land belonging to an
owner and accessible to occupants.'' Paint striping on parking lots,
garages, and roadways will not be covered by this rule. Common area was
expanded in scope to mean ``a portion of a residential property that is
available for use by occupants of more than one dwelling unit'' rather
than ``generally accessible to occupants of all dwelling units''.
Throughout the final rule, HUD has avoided using the term
``accessible'' if its meaning might be confused with that in
regulations implementing the Americans With Disabilities Act. Hazard
reduction was expanded to include standard treatments. Paint testing
was added, replacing the proposed-rule's limited paint inspection for
reasons explained below in the discussion of options in Section
III.E.2.c.(4) of this preamble.
The publication of the EPA regulation at 40 CFR part 745, subparts
L and Q, significantly affected the definitions section as it did the
remainder of this regulation. The definitions of several technical
terms have been deleted from the final rule, since they were associated
with the evaluation and hazard reduction activities now covered by the
EPA regulation.
In the definition of abatement, the statement that ``permanent
means at least 20 years effective life'' was relocated to a separate
definition of ``permanent.'' This was done to conform the definition of
abatement more closely to that in Title X. Also the terms ``lead-
contaminated dust'' and ``lead-contaminated soil'' were changed to
``dust-lead hazard'' and ``soil-lead hazard'' respectively to conform
with terminology being used by EPA in their proposed regulation
implementing TSCA section 403, which was published on June 3, 1998 (63
FR 30301-55). The latter change of terminology has been made throughout
this final rule; the definitions of lead-contaminated dust and lead-
contaminated soil have been replaced with definitions of dust-lead
hazard and soil-lead hazard respectively, and the same substitution of
terms has been made in the definition of lead-based paint hazard. In
the proposed section 403 rule, EPA has adopted the position that
``lead-contaminated dust'' and ``lead-contaminated soil'' are general
terms referring to dust and soil with varying levels of lead
concentration but not necessarily to levels that are considered
hazardous. In the definition of ``soil-lead hazard'' in this final
rule, HUD is including a de minimis area of bare soil outside of play
areas that is not considered a hazard. To be considered a soil-lead
hazard according to this definition, spots or areas of bare soil
outside of play areas must total more than 9 square feet per
residential property and have a lead concentration of an average of
equal to or exceeding 2000 micrograms per gram.
The term accessible (chewable) surface has been replaced with
chewable surface. This was done for two reasons: (1) It avoids
confusion with the use of the word ``accessible'' in regulations and
guidance implementing the Americans With Disabilities Act (ADA), which
is an important law affecting residential real estate; and (2) it
substitutes an easily understood term, ``chewable,'' for a somewhat
ambiguous term, ``accessible,'' that might imply ``reachable'' as well
as ``chewable.'' The substitution of ``chewable'' for ``accessible''
was also made in the definition of ``lead-based paint hazard.'' In
response to many requests for further clarity as to what constitutes a
chewable surface, HUD has added to the definition of ``chewable
surface'' a statement that, ``Hard metal substrates and other materials
that cannot be dented by the bite of a young child are not considered
chewable.'' In most homes, the only chewable surfaces are likely to be
protruding, interior wooden window sills.
A new term, designated party, has been added to simplify and reduce
the length of the rule. It means ``a Federal agency, grantee,
subrecipient,
[[Page 50163]]
participating jurisdiction, housing agency, CILP recipient, tribe,
tribally designated housing entity (TDHE), sponsor, or property owner
responsible for complying with applicable requirements.'' The
definition of the term dwelling unit has been changed to conform to the
Title X definition of ``residential dwelling.'' The substantive meaning
does not change. As in the proposed rule, HUD prefers to use ``dwelling
unit'' instead of ``residential dwelling'' because the former term is
more commonly used and understood and is more distinct from a related
term used in the rule, ``residential property.'' As explained in
Section III.D.6 of this preamble above, in the discussion of policy on
responding to children with elevated blood lead levels, the defined
term elevated blood lead level (EBL) has been changed to environmental
intervention blood lead level, and the definition has been changed
slightly to conform to CDC guidance. The term emergency repair has been
removed from the definitions section, because it is only used once in
the rule, in the section later in subpart B setting forth the exception
for emergency actions; and its meaning there is clear.
The definition of evaluation has been changed. Title X defines this
important term as meaning a risk assessment, inspection, or combination
of the two. The proposed rule added ``visual evaluation'' and made the
determination of the presence of deteriorated paint one of the purposes
of evaluation as well as the determination of the presence of lead-
based paint hazards and lead-based paint. In the final rule, HUD has
removed ``visual evaluation'' from the definition of ``evaluation,''
has removed the related purpose of identifying deteriorated paint, and
has added ``lead hazard screen'' and ``paint testing'' as evaluation
methods. ``Visual evaluation'' was removed because it is quite
different from the activities mentioned in the statutory definition of
``evaluation.'' It does not involve any testing of paint, dust or soil
for lead concentration, nor does it determine the presence or absence
of lead-based paint hazards or lead-based paint. Therefore it does not
produce ``evaluation'' results that, in the opinion of the Department,
have to be reported to occupants. For additional clarity, HUD has
changed the term visual evaluation to visual assessment. A ``lead
hazard screen'' and ``paint testing,'' however, do involve testing and
produce reportable results. Lead hazard screen means a limited risk
assessment that involves paint testing, dust testing and soil testing.
If a property passes a screen using the criteria in subpart R, it is
not necessary to conduct a full risk assessment. This term was not
defined or used in the proposed rule, but HUD now believes that the
option to conduct such a screen should be available, because it is
potentially less costly than and often as effective as a full risk
assessment, especially in housing built after 1959 that is in good
condition. The term paint testing replaces the proposed-rule term
limited paint inspection in response to a comment from EPA that it
would be helpful to differentiate more clearly between a full
``inspection,'' as specified in the EPA rule implementing TSCA section
402, and a more limited procedure to determine the presence of lead-
based paint only on deteriorated paint surfaces or surfaces to be
disturbed by rehabilitation.
Title X exempts housing for the elderly and persons with
disabilities unless a child of less than 6 years of age resides or is
expected to reside in such housing. Believing that expected to reside
requires interpretation, the Department is introducing in this final
rule a definition stating that ``expected to reside'' means there is
actual knowledge that a child will reside and that if a resident woman
is known to be pregnant there is actual knowledge that a child will
reside in the dwelling unit. (As mentioned, it is not advisable to
inquire as to pregnancy status in most real estate transactions. See
Section III.D.7 of this preamble, above, on fair housing requirements.)
Firm commitment, a term used only in subpart G, Multifamily
Mortgage Insurance, is defined for purposes of clarity to mean a valid
commitment issued by HUD or the Federal Housing Commissioner setting
forth the terms and conditions upon which a mortgage will be insured or
guaranteed. In this rule, grantee is a term used only in subparts J,
Rehabilitation, and K, Acquisition, Leasing, Support Services or
Operation. It is defined to mean any State or local government, Indian
tribe, IHBG recipient, or insular area that has been designated by HUD
to administer Federal housing assistance under a program covered by
subparts J and K, except the HOME program or the Flexible Subsidy-
Capital Improvement Loan Program (CILP). The defined term participating
jurisdiction is used in the HOME program, and CILP recipient is the
defined term used to mean an owner of a multifamily property which is
undergoing rehabilitation funded by the CILP program. The definition of
hard costs of rehabilitation has been changed, in response to comments
requesting greater clarity, to add the following statement: ``Hard
costs do not include administrative costs (e.g., overhead for
administering a rehabilitation program, processing fees, etc.).''
The definition of HEPA vacuum has been made more precise. The
proposed rule definition was ``a vacuum with an attached high-
efficiency particulate air (HEPA) filter capable of removing particles
of 0.3 microns or larger from air at 99.97 percent efficiency.'' The
final definition requires that a HEPA filter be integral to the vacuum
cleaner and gives an actual-performance, rather than potential-
performance, definition of HEPA filter. Both definitions use
performance measures of filter collection efficiency, with values
common in the hazardous dust standard setting, e.g., EPA in asbestos
rules (40 CFR 763.83, 763.121), OSHA in a lead rule (29 CFR
1926.62(f)(3)), and DOE in a HEPA filter specification (DOE-STD-3020-
97). Current technology for assessing personal respirator filter
performance is used by NIOSH in its respirator rule (42 CFR 84.181), by
OSHA in citing the NIOSH rule (63 FR 1297, January 8, 1998), and by DOE
in the specification cited above.
The technological precision reflected in the regulations just cited
is not seen in the HEPA vacuum industry, however, so the rule can not
specify the procedure for testing conformance. Performance and
operational criteria of the manufacturer(s) of the filter and the
vacuum unit as a whole are to be used for filter efficiency and
particle size criteria. HUD is promoting research and development of
standards on collection efficiency measurement applicable to HEPA
vacuums. For example, it supports research at the University of
Cincinnati (Cincinnati, OH 45267-0056) on vacuum cleaner dust
penetration. HUD staff participates on the American Society for Testing
and Materials' (West Conshohocken, PA 19428-2959) Task Force F11.23.01
on vacuum cleaner system filtration efficiency working on a vacuum dust
penetration measurement standard. HUD is aware of the American Society
of Mechanical Engineers' (New York, NY 10017-2392) Air and Gas Cleaning
Group work on protocols to assess HEPA filter application performance.
DOE cites the testing procedures of ASME Code AG-1, Section FC, HEPA
Filters. Because the standards above are not yet directly applicable to
fully assessing HEPA vacuums, HUD will monitor and support research and
standards development, and revise its definition as needed. HUD
welcomes data on research and measurement criteria for HEPA vacuums and
HEPA filters.
The proposed-rule definition of HUD-owned property has been changed
to
[[Page 50164]]
conform to the definition of federally owned property that is in Title
X. The definition in the final rule is ``residential property owned or
managed by HUD, or for which HUD is a trustee or conservator.'' The
Department acknowledges, however, that although this definition
conforms word for word to the Title X definition, it does not represent
common usage. For practical and programmatic purposes, HUD considers
property it owns to be only that to which it has title; it
distinguishes between owned and managed property. However, this
distinction does not affect the application of the rule. The rule
covers both HUD-owned and HUD-managed property. Subpart I of the rule
applies to multifamily property that is HUD-owned or for which HUD is
``mortgagee-in-possession.'' A property for which HUD is mortgagee-in-
possession is one for which title has not passed to HUD but which is
being managed by HUD prior to foreclosure.
The definition of Indian tribe (tribe) has been changed to conform
to the Native American Housing Assistance and Self Determination Act of
1996 (Pub. L. 104-330). The proposed rule term ``paint inspection'' has
been changed to lead-based paint inspection in the final rule to avoid
confusion with inspections of paint that are conducted for purposes
other than determining the presence of lead-based paint. The definition
of project-based assistance is changed for purposes of clarity to
indicate that the term applies to rental assistance and that it does
not include Federal rehabilitation assistance or assistance to public
housing developments. In the proposed rule, the definition of risk
assessment was identical to that in Title X. In the final rule, the
specificity of this definition has been reduced to minimize regulatory
rigidity and to avoid potential conflict with EPA regulatory
definitions and work practices standards.
Finally, the definition of lead-based paint has been edited
somewhat. Although no substantive change has been made, one
modification is worthy of note. The definition in the proposed rule,
after the phrase ``equal to or exceeding 1.0 milligram per square
centimeter or 0.5 percent by weight or 5,000 parts per million,''
included the phrase ``or another level that may be established by the
Secretary.'' The latter phrase has been removed from the definition in
the final rule to avoid possible confusion that might result from the
absence of such a phrase in other recent regulations promulgated
pursuant to Title X. Its inclusion in the proposed rule was based on
the statutory provision found in section 302(c) of the Lead-Based Paint
Poisoning Prevention Act, which states that ``the Secretary (of HUD)
shall periodically review and reduce the level below 1.0 milligram per
centimeter squared or 0.5 percent by weight to the extent that reliable
technology makes feasible the detection of a lower level and medical
evidence supports the imposition of a lower level.'' While HUD has no
plans to propose a lower level, the statutory responsibility remains
whether it is mentioned in the rule or not.
b. Exemptions. A detailed discussion of the exemptions provided in
subpart B is found in Section III.A.5 of this preamble, above.
c. Options. In addition to exemptions, the final rule provides
several options that HUD believes will provide owners and other parties
with flexibility and thus greater efficiency in carrying out evaluation
and hazard reduction activities.
(1) Standard treatments. Where interim controls are required, the
designated party has the option to presume that lead-based paint or
lead-based paint hazards or both are present throughout the property,
omit the risk assessment or lead-based paint inspection or both, and
conduct standard treatments in accordance with requirements set forth
in subpart R of part 35 in lieu of interim controls. Standard
treatments are: (a) Stabilization of all deteriorated paint, interior
and exterior; (b) the provision of smooth and cleanable horizontal hard
surfaces; (c) the correction of dust-generating conditions (i.e.,
conditions causing rubbing, binding, or crushing of surfaces known or
presumed to be coated with lead-based paint); and (d) treatment of bare
soil to control known or presumed soil-lead hazards. Safe work
practices and clearance are required. Individuals performing standard
treatments must be trained in how to control lead-based paint hazards.
The training requirement is identical to that for interim controls.
This option, which was not provided in the proposed rule, derives from
a recommendation by the Task Force on Lead-Based Paint Hazard Reduction
and Financing. The Task Force recommended standard treatments as an
option to the risk assessment/interim control approach because standard
treatments ``offer the advantage of devoting resources directly to
hazard control--and their cost may be minimal for units in good
condition.'' Also, the Task Force noted that standard treatments can be
carried out by ``in-house maintenance staff who have sufficient
knowledge of lead-based paint hazards.'' On the other hand, because no
risk assessment is done, standard treatments may be implemented in some
units that have no lead-based paint hazards, and resources may be
expended unnecessarily. HUD is including the standard treatments option
in the final rule in response to public comments that certified risk
assessors may be in short supply in some parts of the nation, that the
cost of risk assessments may be excessive, and because the decision to
test is best left to the discretion of the designated party.
(2) Presumption in the case of abatement. Where abatement is
required, the designated party may presume that lead-based paint or
lead-based paint hazards or both are present throughout the property,
omit the evaluation, and conduct abatement on all painted surfaces.
This option, however, is not available in public housing, because a
lead-based paint inspection has been a statutory requirement for all
target housing that is public housing since 1994.
(3) Lead hazard screen. Where a risk assessment is required by this
rule, the designated party may choose to first conduct a lead hazard
screen to determine whether a full risk assessment is necessary. The
lead hazard screen is a limited risk assessment activity that involves
dust sampling and soil sampling, and may include paint testing on
deteriorated paint surfaces (if present). The screen must be conducted
in accordance with State or tribal work practices standards under an
EPA-authorized program or in accordance with EPA standards at 40 CFR
part 745, subpart L. Because EPA regulations do not include specific
standards for dust lead in lead hazard screens, HUD, in this final
rule, is setting such standards at approximately one-half those of a
full risk assessment (see Section III.E.15.a and b of this preamble,
below). The standards for soil are the same for a lead hazard screen as
for a risk assessment. If State or tribal standards for a lead hazard
screen are more stringent than those in this rule, the State or tribal
standards prevail. If they are less stringent, the standards of this
rule apply. The standard for lead-based paint is the same for the
screen as for a risk assessment or lead-based paint inspection. If a
dust sample is found to be positive, i.e. have a level of lead equal to
or greater than the dust-lead standards for the lead hazard screen, or
there is lead-based paint on a deteriorated paint surface, a full risk
assessment must be performed. If the lead hazard screen is negative,
the risk assessment is not required. The lead
[[Page 50165]]
hazard screen option was not provided in the proposed rule because the
cost differential between a full risk assessment and a screen was
perceived to be small (essentially the cost of soil testing and a
somewhat more elaborate report) and because HUD felt that a certified
risk assessor would be empowered by EPA and/or State or tribal
regulations to use a screen anyway. HUD is including explicit mention
of the screen in the final rule to assure that all parties will be
aware that the option is available to try to achieve cost savings,
which are most likely in post-1959 properties in good condition.
(4) Paint testing. Under the proposed rule the requirements of
certain subparts of the rule would not apply for a specific
deteriorated paint surface to be disturbed if a ``limited paint
inspection'' indicated the absence of lead-based paint on that surface.
EPA objected to the proposed rule's definition of ``limited paint
inspection,'' noting that EPA work practices standards for inspections
(40 CFR 745.227) do not include or envision a ``limited'' paint
inspection or any other inspection activity not including a
``comprehensive inventory of all of the lead-painted surfaces in a
residential dwelling.'' Accordingly, a ``limited'' paint inspection
would be a violation of EPA work practice standards. If a similar
procedure is retained, EPA said, the use of the word ``inspection'' in
the definition should be dropped, and HUD should identify the
circumstances under which this ``limited'' activity would be conducted,
set out procedures and requirements for conducting it, and state the
qualifications required for individuals who would conduct the activity.
Another comment from a legal services organization recommended
elimination from the regulation of the ``limited paint inspection''
option.
In the final rule, the term ``limited paint inspection'' has been
replaced with the term ``paint testing.'' Where paint stabilization or
interim controls of a deteriorated paint surface is required by this
rule, paint testing of non-intact paint surfaces may be conducted to
determine the presence of lead-based paint instead of conducting a
complete lead-based paint inspection or presuming the presence of lead-
based paint. Paint testing may also be employed to determine if intact
paint on a surface to be disturbed during rehabilitation contains lead-
based paint. If the paint testing indicates the absence of lead-based
paint, paint stabilization, interim controls or abatement of that
surface is not required. Paint testing must be performed by a certified
lead-based paint inspector or risk assessor.
d. Notice of Evaluation and Hazard Reduction Activities. Title X
requires the provision of notice to occupants describing the nature and
scope of any risk assessment, lead-based paint inspection, or hazard
reduction activities undertaken. In general, the Department believes
that detailed matters of notice, format and distribution are best
determined by the property owner or other recipient of Federal housing
assistance, under the general framework provided in this rule. In the
final rule as well as the proposed rule, the Department has interpreted
this provision to require the following: (1) Within 15 calendar days of
receiving a risk assessment, lead-based paint inspection, or paint
testing report, a written notice must be provided to occupants
containing a summary of the nature, scope and results of the evaluation
and a contact for more information or access to the actual reports; and
(2) within 15 calendar days of completing hazard reduction activities,
a notice must be provided to occupants of actual hazard reduction
activities conducted. The notice must contain a summary of the nature,
scope and results of the hazard reduction activities, a contact for
more information, and information on any identified remaining lead-
based paint on a surface-by-surface basis. This notice shall be
updated, based on any reevaluation of the dwelling unit or if
additional lead-based paint hazard reduction work is conducted. The
notices must be posted in centrally located common areas or distributed
to each occupied dwelling unit, must be of a size and type that are
easily read by occupants, and must be made available in a format
accessible to persons with disabilities, to the extent practicable. The
proposed rule required that, if possible, the notice must be provided
in the occupant's primary language. The final rule, in response to
comments that some apartment projects may have more than a dozen
primary languages represented, deleted the ``if possible'' phrase and
added the option to provide the notice in the language of the
occupant's contract or lease.
The statute does not specifically require that separate notices be
provided to occupants after an evaluation has been conducted and again
after hazard reduction activities have been undertaken. In the
Department's view, however, withholding information of the results of
an evaluation until after hazard reduction activities have been
performed poses a potential risk to occupants. The sooner occupants are
provided with this information, the better they can protect their
children and themselves.
The Department requested comment on the content, format and
distribution of the notices. One commenter suggested that the notice be
provided both when evaluation has taken place, and then again before
hazard reduction activities are undertaken. HUD has not adopted this
suggestion, because it believes it should not regulate tenant-landlord
relations this closely. This comment was made to insure that occupants
can prepare their units for hazard reduction activities. Actually, all
hazard reduction activities require occupant protection by the owner
(or contractor), who would coordinate these actions with the occupant
even if no separate notice is provided.
Some commenters recommended that the notice be given to each
occupant. HUD continues to believe that it is reasonable to expect that
occupants can read the notice if it is posted in central locations. In
the final rule, this decision is left to the discretion of the owner or
other designated party, except that the notice must be distributed to
the dwelling unit of a head of a tenant household if the owner knows
that the head of household is a person with a disability that would
make a posted notice inaccessible to that person.
One commenter asked for more time to provide occupants with the
notice of evaluation results. The commenter felt that 15 days is not
enough time for management to digest the evaluation and prepare the
documentation needed to explain the results to residents. In response,
HUD has added to the final rule a strong recommendation, but not a
requirement, that paint inspectors and risk assessors provide summary
statements of inspections and risk assessments suitable for posting or
distribution. This provision is located in Sec. 35.1320, in subpart R.
For further discussion and sample formats, see Section III.E.15.c, of
this preamble below, and appendices B through E of the rule.
One commenter noted that the proposed rule did not include notice
requirements for HUD-owned properties. In the final rule, HUD has
included notice requirements for HUD-owned properties that are similar
to those for other housing programs, even though such a requirement is
not called for by statute.
e. Lead Hazard Information Pamphlet. Title X requires that the lead
hazard information pamphlet developed by EPA, CPSC and HUD pursuant to
TSCA section 406(a) be provided to purchasers
[[Page 50166]]
and tenants of housing affected by section 1012 of the statute.
Provision of the pamphlet is not required for housing affected only by
section 1013 of Title X. In response to comments, the Department has
made three types of changes to the pamphlet-provision requirement that
was in the proposed rule. The first change is largely editorial and is
intended to increase policy consistency across programs and to reduce
the length of the rule. HUD has provided a statement of the general
requirement in subpart B, Sec. 35.130, and referenced that section in
each of the program-specific subparts where pamphlet provision is
required. Section 35.130 states that the designated party shall provide
the pamphlet to each occupied dwelling unit. Acknowledgment of receipt
is not required, but it is recommended. The program-specific subparts
of the rule state more explicitly who shall provide the pamphlet--e.g.,
the public housing agency, the owner, the sponsor, the grantee, or the
participating jurisdiction.
Second, HUD has made substantive changes to further minimize
duplicative requirements for the provision of the pamphlet. Section
1012 is one of three different sections of Title X that call for
provision of the pamphlet. The other two are section 1018 (which
requires provision of the pamphlet and disclosure of known lead-based
paint hazards prior to sale or lease), and TSCA section 406(b) (which
requires persons performing renovation for compensation to provide the
pamphlet before beginning the renovation). The proposed rule recognized
potential overlap with the HUD-EPA rule implementing section 1018 (the
disclosure rule) but did not discuss EPA's then-proposed rule
implementing section 406(b) (the renovation rule).
For most rental housing, HUD's proposed rule required that the
pamphlet be provided only if the tenant had taken residence before the
effective date of the disclosure rule (which was either September or
December 1996, depending on the number of housing units owned by the
landlord). This policy did not address the case of a tenant who took
residence before the effective date of the disclosure rule but received
the pamphlet at the time of renewal or revision of the lease. The
proposed-rule policy also did not address the case of a landlord who,
acting as a renovator's designated representative, provided the
pamphlet to a tenant before renovation in compliance with the
renovation rule. Therefore, to allow landlords the flexibility to
minimize duplication of pamphlet provision, the final rule, in
Sec. 35.130, states simply that it is not necessary to provide the
pamphlet if it can be demonstrated that it has already been provided in
accordance with the disclosure rule or the section 406(b) renovation
rule. Prior provision of the pamphlet is best demonstrated by retaining
an acknowledgement by the occupant of receipt of the pamphlet. Such
acknowledgment is required by the disclosure rule and, with some
exceptions, by the renovation rule.
In the proposed rule, the two subparts pertaining, respectively, to
rehabilitation assistance and to CPD non-rehabilitation programs
required provision of the pamphlet to the tenant, owner occupant or
purchaser regardless of whether the pamphlet had been provided under
the disclosure rule. In the final rule, this has been changed to
conform with the general policy in Sec. 35.130. HUD expects that most
local and State rehabilitation programs will be administered so that
provision of the pamphlet by the renovator in compliance with the
renovation rule will also meet the requirements of this final rule.
Third, some commenters requested that EPA-approved State
equivalents to the pamphlet be specifically permitted. In the interest
of streamlining and simplicity, the final rule includes such a
provision.
f. Use of Paint Containing Lead. The final rule continues the
prohibition against use of new paint containing more than 0.06 percent
by weight of lead in federally owned or assisted housing. This
provision has been in HUD regulations since the late 1970's and is
based on the 1977 regulation promulgated by the Consumer Product Safety
Commission (16 CFR Part 1303).
If a State or local jurisdiction banned the residential use of
paint containing lead before 1978, the rule allows the Secretary to
apply a date earlier than 1978 to activities covered by this rule in
that jurisdiction.
g. Prohibited Methods of Paint Removal. The final rule includes the
same prohibited practices as in the proposed rule (open flame burning,
machine sanding without HEPA exhaust control, abrasive blasting without
HEPA local exhaust control, heat guns operating above 1100 degrees
Fahrenheit, dry scraping or sanding except in certain situations), plus
one addition: paint stripping using a hazardous volatile substance in a
poorly ventilated space. OSHA says that adults exposed to methylene
chloride ``are at increased risk of developing cancer, adverse effects
on the heart, central nervous system and liver, and skin or eye
irritation. Exposure may occur through inhalation, by absorption
through the skin, or through contact with the skin.''(62 FR 1493,
January 10, 1997).
The Consumer Product Safety Commission/EPA consumer notice, What
You Should Know About Using Paint Strippers (CPSC Document 4423, EPA
document EPA 747-F-95-002), recommends to persons who ``use paint
strippers frequently, (that) it is particularly important that
you...Never use any paint stripper in a poorly ventilated area. If work
must be done indoors under low ventilation conditions, consider having
the work done professionally instead of attempting it yourself.'' This
is of particular importance in lead-based paint removal work larger
than the de minimis level (such as 2 sq. ft. per room). CPSC and EPA
recommend that persons who strip paint ``cross-ventilate (the worksite)
by opening all doors and windows (and m)ake sure there is fresh air
movement throughout the room.'' This practice deviates from the
worksite protection for larger lead-based paint stripping projects,
which typically involves protecting the work area and occupants from
dispersal of lead debris and dust by sealing off ventilation systems
and/or erecting barriers between the work area and the rest of the
residence to reduce ventilation (see the HUD Guidelines, chapter 8).
The CPSC/EPA notice also recommends precautions for firesafety, eye
protection, skin protection, and waste disposal for paint strippers.
Some paint strippers are hazardous, and are addressed as such by
regulatory agencies. HUD has considered the type of work in identifying
the applicable definition to consider. The definition of ``hazardous
substance'' used by the CPSC (see 16 CFR 1500.3), based on the Federal
Hazardous Substances Act (15 U.S.C. 1261-74), applies to paint
stripping work that does not involve employment, such as paint
stripping by the owner of HUD-assisted housing who performs the work
personally. The definition of ``hazardous chemical'' used by the
Occupational Safety and Health Administration, and based on the
Occupational Safety and Health Act (29 U.S.C. 655(a)), applies to paint
stripping that does involve employment. OSHA's definition for the
general industry at 29 CFR 1910.1200 currently applies to building
maintenance, custodial, or construction work, because OSHA's hazard
communication standard for the construction industry, at 29 CFR
1926.59, is identical to that for general industry.
Employers of paint removal workers are expected to know that OSHA
[[Page 50167]]
recently reduced its permissible exposure limit for methylene chloride
in air from 500 to 25 parts per million (29 CFR 1910.1052 for general
industry, and the identical 29 CFR 1926.1152 for construction, 62 FR
1492-1619, January 10, 1997). Methylene chloride can not be detected by
odor at the permissible exposure limit, and organic vapor cartridge
negative pressure respirators are generally ineffective for personal
protection against it. Alternative paint strippers may be safer but
have their own safety and/or health concerns, as indicated in the CPSC/
EPA notice, so caution in the selection and use of any paint stripper
is prudent. Paint stripping in a poorly ventilated space using a
volatile substance that is hazardous should be done in accordance with
CPSC regulations (16 CFR 1500.3), and/or OSHA's hazard communications
standards (29 CFR 1010.1200 or 29 CFR 1926.59, which are currently
identical), and with any substance-specific standards applicable to the
work.
h. Compliance With Other State, Tribal, and Local Laws. In response
to comments urging deference to State, tribal and local laws and
regulations, HUD has added a provision to the final rule that makes it
clear that HUD may modify or waive requirements of subparts B, C, D, F
through M, and R, if the Department determines that a State, tribal, or
local law provides a comparable level of protection and that such a
modification or waiver will promote efficiency.
The final rule also indicates that this regulation is not intended
to relieve program participants from compliance with State, tribal or
local law.
i. Minimum Requirements. The final rule retains the policy included
in the proposed rule that the requirements of subparts B, C, D, F
through M, and R, are intended to be minimum requirements. Nothing in
this rulemaking is intended to preclude designated parties from
conducting a more protective method than the one required. Thus, for
example, if the requirement is interim controls, a designated party may
choose to use an abatement method instead.
Similarly, where more than one requirement covers a condition or
activity, the most protective shall apply.
j. Waivers. Also retained from the proposed rule is the authority
of the Secretary of HUD to waive any provision of this rulemaking,
subject to statutory limitations. This conforms to, and cites,
Sec. 5.110, the general waiver section for HUD programs under title 24.
k. Prior Evaluation or Hazard Reduction. Some commenters requested
clarification as to the validity under HUD's rule of lead-based paint
activities conducted prior to the effective date of the rule. In the
final rule, conditions under which a prior evaluation or hazard
reduction meets the requirements of the rule have been specified.
Section 1013 of Title X gives the Secretary authority to waive the
lead-based paint inspection and risk assessment requirement for
federally owned housing built between 1960 and 1978 if a federally
funded risk assessment by a certified contractor shows an absence of
lead-based paint hazards. The Department believes case-by-case waivers
to be inefficient and inappropriate and therefore has developed a
broader policy on prior activities that covers all properties for which
an acceptable risk assessment, lead-based paint inspection, abatement,
or clearance has been performed. The Department believes that the
conditions set forth in this section provide the necessary quality
control measures for prior lead-based paint activities while avoiding
unnecessary duplication.
A lead-based paint inspection or a risk assessment conducted at a
residential property or dwelling unit prior to the property or unit
becoming subject to the requirements of subparts C, D, F through M, and
R, need not be repeated if it was conducted in the following manner or
under the following circumstances:
(1) If the lead-based paint inspection or risk assessment was
conducted prior to August 30, 1999 (the effective date of the EPA
regulations at 40 CFR 745.227), results of the evaluation may be used
if it was conducted in accordance with 40 CFR 745.227 or by an
individual or firm otherwise certified under a State or Indian tribal
lead-based paint inspector or risk assessor certification program,
except that the risk assessment must be no more than 12 months old to
be considered current; and furthermore a lead-based paint inspection of
public or Indian housing meets the requirements of this rule if it was
accepted by the housing agency in fulfillment of the lead-based paint
inspection requirement of the public and Indian housing program prior
to the effective date of this rule.
(2) If the inspection or risk assessment was conducted after August
29, 1999, the results of the evaluation may be used if it was conducted
in accordance with 40 CFR part 745, subparts L and/or Q, except that
the risk assessment must have been completed no more than 12 months
prior to the date of reference.
The provisions in subpart B regarding prior risk assessments do not
apply in cases where a risk assessment is required in response to the
identification of a child under 6 years of age with an environmental
intervention blood lead level. In such cases the risk assessment must
be conducted in the child's dwelling unit shortly after the child's
blood was last sampled.
Interim controls conducted prior to a property or unit becoming
subject to the requirements of subparts B, C, D, F through M, and R,
need not be repeated if such controls were conducted in accordance with
a risk assessment that meets the requirements of this rule; however,
ongoing lead-based paint maintenance and reevaluation must be conducted
as required by this final rule.
Abatements conducted before August 30, 1999 and before the property
or unit becomes subject to the requirements of subparts B, C, D, F
through M, and R, need not be repeated if conducted by an abatement
supervisor approved by a State or Indian tribe to perform abatement of
lead-based paint or lead-based paint hazards. It is not necessary that
the State or tribal approval program had EPA authorization. Abatements
conducted after August 29, 1999, must have been conducted by a lead-
based paint abatement supervisor certified by a State or Indian tribe
with an EPA-authorized lead-based paint certification program or by EPA
in accordance with 40 CFR 745.226. State law may impose different
requirements. A lead-based paint abatement project meets the
requirements of this rule if it was accepted by the housing agency in
fulfillment of the abatement requirement of the public or Indian
Housing program prior to the effective date of this rule.
With regard to the policy on prior lead-based paint inspections in
public and Indian housing, it should be explained that in the late
1980's, pursuant to a statutory requirement, HUD began requiring public
and Indian housing agencies to conduct lead-based paint inspections in
all pre-1978 family developments. All inspections had to be completed
by December 1994. Abatement of any lead-based paint was required at the
time of modernization. HUD estimates that by 1998, virtually all of the
pre-1978 family developments have been inspected, representing
approximately 900,000 dwelling units. Also, HUD estimates that housing
agencies have completely abated lead-based paint in over 200,000 units.
The Department does not think it would be acceptable now to require
that all lead-based paint inspections be redone. However, the rule does
recommend that housing agencies conduct quality
[[Page 50168]]
assurance testing for all inspections that might be questionable.
l. Enforcement. Every commenter who addressed the question of
enforcement of the rule remarked that penalties for noncompliance
needed to be spelled out in the rule. The Lead-Based Paint Poisoning
Prevention Act does not provide any independent enforcement provisions.
Remedies will vary based on which program's requirements have been
violated. For example, a designated party that is not in compliance
with this rule may be considered in default of the regulatory agreement
or housing assistance payments contract with the Department, may be
debarred from receiving assistance from the Department or denied future
participation in HUD programs, may be forced to surrender grant funds
or may be otherwise subject to civil money penalties or other
sanctions. Recipients of assistance under the Community Development
Block Grant program will find enforcement provisions at 24 CFR 570.910,
570.911 and 570.913; those for other programs are found in other parts
and sections of the CFR. HUD does not think it necessary to restate
each program's sanctions in this lead-based paint rule but has included
a general provision under Sec. 35.160 that states the consequences of
noncompliance with this regulation. HUD intends to vigorously enforce
all requirements of this regulation.
m. Records. HUD has retained a record keeping requirement in this
final rule for designated parties conducting lead-based paint
activities. The Department strongly recommends that designated parties
keep for the life of the property a copy of each notice to occupants of
the results of evaluation and hazard reduction (including clearance)
and each report from a certified individual or firm performing lead-
based paint inspections, risk assessments, abatement, or clearance.
Such notices and reports document compliance in case of a legal or
administrative question; and evaluation and hazard reduction reports
provide information on where lead-based paint may remain on the
property so it can be managed safely, or, if such reports document that
there is no lead-based paint remaining on the property, they can be
used to support exemption from the requirements of this rule and the
disclosure rule. At a minimum, the Department requires that such
documentation be retained for three years. Records applicable to a
portion of a residential property for which ongoing maintenance and/or
reevaluation activities are required shall be kept until at least three
years after such activities are no longer required. This policy is
designed to provide a basis for helping ensure that Federal funds have
been expended properly.
3. Subpart C--Disposition of Residential Property Owned by a
Federal Agency Other than HUD. This subpart establishes minimum lead-
based paint requirements for residential property built before 1978
that is owned and to be sold by a Federal agency other than HUD and is
consequently subject to the requirements of section 1013 of Title X.
The subpart basically restates the requirements set out in section 1013
of Title X, with minimal elaboration. The Department believes that the
details of how another Federal agency should carry out the requirements
of section 1013 are best determined by the affected agency.
The proposed rule required that for residential property built
before 1960, the Federal agency shall conduct a lead-based paint
inspection and a risk assessment, and shall abate all lead-based paint
hazards. In the case of a purchaser who is not to be an owner occupant,
the agency could make abatement a condition of sale with sufficient
funds escrowed. For properties built after 1959 and before 1978, the
proposed rule required that the agency conduct a risk assessment and a
lead-based paint inspection. Under the disclosure rule implementing
section 1018 of Title X, the agency would be required to provide the
results of the risk assessment and inspection to the purchaser.
The Department of the Navy commented that the requirement that both
a risk assessment and a lead-based paint inspection be conducted
appeared to exceed the statutory requirement. Section 1013 calls for
``the inspection and abatement of lead-based paint hazards'' in pre-
1960 housing and ``an inspection for lead-based paint and lead-based
paint hazards'' in housing built between 1960 and 1978. HUD is calling
for both an inspection and a risk assessment because the statutorily
defined term ``inspection'' refers to a procedure that identifies the
location of lead-based paint, if any, on a property but does not
identify the location of ``lead-based paint hazards,'' as that term is
defined in the statute. Identification of lead-based paint hazards is
the function of a risk assessment. Thus, because lead-based paint
hazards must be identified to comply with section 1013, a risk
assessment must be conducted as well as an inspection. HUD expects that
the two evaluation procedures will be performed concurrently.
The Air Force, Army and the General Services Administration (GSA)
all asked for greater flexibility to permit negotiation with
transferees regarding hazard control requirements ``built into the
contract of sale.'' These agencies argued that, while the proposed rule
allowed abatement to be made a condition of sale, it required the
escrow of sufficient funds, and it may not be feasible for a bidder on
large blocks of units to escrow large sums for long periods of time. It
was pointed out that purchasers do not always know at the time of
transfer what the reuse of a property, or a part thereof, will be. It
was recommended that other conditions be permitted to be attached to
the sale--for example, certification and indemnification requirements
not requiring escrow deposits, and deed restrictions. GSA also
complained that limiting an agency's authority to make abatement a
condition of sale to when the purchaser is not an owner occupant could
cause unnecessary complications in the bidding process. Bidders
intending not to be owner occupants might discount their bids to
account for the cost of the evaluation, while those intending to be
owner occupants would not.
HUD believes that allowing the Federal agency a choice of
conducting the abatement itself or making it a condition of sale
facilitates efficiency and timeliness in the disposition process. The
Department finds the agencies' comments about making abatement a
condition of sale in pre-1960 properties to be reasonable and has
changed the relevant provision to allow that ``where abatement of lead-
based paint hazards is not completed before the closing of the sale,
the Federal agency shall be responsible for assuring that the abatement
is carried out by the purchaser before occupancy of the property as
target housing'' (emphasis added) and in accordance with the
requirements of either a State or tribal program authorized by EPA
under subpart Q of 40 CFR part 745 or EPA's requirements at subpart L
of 40 CFR part 745. This revised wording is intended to provide
agencies more choice, while retaining their responsibility to assure
compliance with the statute; and it eliminates the potential for
confusion and complications in the bidding process by removing the
provision that confined the authority to make abatement a condition of
sale only to those sales in which the purchasers will not be owner
occupants of the property. Further, it should be noted that it is HUD's
interpretation that abatement
[[Page 50169]]
will not be required if the reuse is not to be target housing.
With regard to disposal of military property, HUD recognizes that
there are several statutory, regulatory and policy requirements
pertaining to the cleanup, disposal and reuse of BRAC (base realignment
and closure) properties and that agencies of the Department of Defense
are using provisions in contracts for sale and deeds to assure that
lead-based paint hazards in target housing built before 1960 will be
abated prior to occupancy. Typical of such contract or deed provisions
is the following: ``Purchaser agrees that purchaser will be responsible
for the abatement of any lead-based paint hazards (as defined in Title
X and implementing regulations) by a certified contractor in accordance
with Title X and implementing regulations before the use and occupancy
of such improvements as a residential dwelling (as defined in Title
X).'' To document compliance with such a provision, HUD recommends that
Federal agencies include as a contractual condition the requirement
that the purchaser send a copy of the certified abatement report,
including clearance, to the agency.
The Department of the Army recommended that the rule be changed to
allow the lead-based paint inspection and risk assessment, as well as
the abatement, to be conducted following the sale of the property. HUD
is of the opinion that evaluation must be conducted by the Government
before the sale for two reasons: (1) Unless the evaluation is done
prior to bidding, bidders will be unable to estimate the cost of
abatement in pre-1960 properties and to consider that amount in
calculating their bids; and (2) for properties built after 1959 and
before 1978, the statute explicitly states that ``the results of such
inspections shall be made available to prospective purchasers.''
One advocacy organization argued that the regulations should do
away with the artificial distinction they create between HUD-owned
property and housing owned by some other Federal agency stating that
``the Federal government must provide consistent leadership in ensuring
that all housing it sells or * * * disposes of is free of lead
hazards.'' HUD's rationale for distinguishing between HUD Programs and
those of other Federal agencies is discussed under Section III.D.5 of
this preamble, above.
As mentioned above, in Section III.A.3 of this preamble, the
statute states that the requirements of section 1013 do not apply ``in
the absence of appropriations sufficient to cover the costs.''
Therefore this final rule provides in subpart B, at Sec. 35.115, that
each Federal agency other than HUD must determine whether
appropriations are sufficient.
With regard to a sale of housing owned by Federal agencies other
than HUD and in which more than one Federal agency is party to the
sale, HUD leaves to the agencies involved the responsibility to
determine which Federal agency is responsible for compliance with this
subpart.
4. Subpart D--Project-Based Assistance Provided by a Federal Agency
Other Than HUD. This subpart sets out minimum requirements, consistent
with section 1012, for Federal agencies other than HUD that have
housing programs and provide more than $5,000 of project-based
assistance. The subpart basically restates the minimum requirements set
out in section 1012. Few comments were received on this subpart of the
proposed rule and therefore, the requirements remain largely unchanged.
HUD has modified the proposed-rule requirements for notification of
occupants about the results of evaluation and hazard reduction. In the
final rule, the notification requirements that apply to this subpart
are basically the same as those that apply to HUD-assisted housing
instead of the more general proposed version. The Department believes
that this change will result in more uniform and complete notification
practices among all federally owned and assisted housing, consistent
with government-wide regulatory streamlining.
In response to a question from the Department of Agriculture
regarding how the ``more than $5,000'' figure is to be applied, HUD is
indicating in the final rule that the requirements apply to housing
that receives annually more than $5,000 per project.
5. Subpart E reserved. This subpart is reserved for possible future
rulemaking on lead-based paint poisoning prevention requirements in
single family housing covered by an application for HUD mortgage
insurance or guarantee. Existing requirements at 24 CFR part 200,
subpart O, as revised by this final rule, shall continue to apply to
housing covered by an application for single family mortgage insurance.
6. Subpart F--HUD-Owned Single Family Property. This subpart sets
out the requirements for HUD-owned single family property. In the
proposed rule, two subparts addressed HUD-owned single family property;
one subpart set out the requirements when sufficient appropriations
were available, and another set out the requirements for such property
in the absence of sufficient appropriations. In the case of sufficient
appropriations, the requirements were identical to those of section
1013 of Title X: for housing built before 1960, a risk assessment and
lead-based paint inspection followed by abatement of lead-based paint
hazards; for housing built between 1960 and 1978, a risk assessment and
lead-based paint inspection, followed by disclosure as required under
the disclosure law. In the case of insufficient appropriations, the
requirements were a visual-assessment for deteriorated paint followed
by paint repair and cleanup. The Department has removed the
appropriations distinction, and set forth a single policy under subpart
F, as explained in Section III.A.3 of this preamble, above.
A childhood lead poisoning prevention advocacy group argued for
stronger protection in both the single-family and multifamily subparts,
asserting that HUD and other Federal agencies selling residential
properties have a ``particular responsibility'' to ensure that sold
properties contain no lead-based paint hazards. The commenter declared,
``HUD has complete discretion and ample existing authority to require
the evaluation and control of lead hazards before the sale of federally
owned housing.'' An environmental organization joined in all these
points, and remarked that ``one of the most obvious opportunities for
lead hazard control is during turnover, such as that accompanying
change of ownership. HUD can, and should, be a leader in assuring that
hazards are corrected at the time of sale * * *'' The groups called for
revisions to include the requirement of a risk assessment and hazard
identification and control for any older structure.
In the final rule, the requirements for HUD-owned single family
properties being purchased with a mortgage insured by HUD are: a visual
assessment to identify deteriorated paint, paint stabilization, and
unit-wide clearance. HUD has added the clearance requirement to provide
assurance that the work is done properly and that no hazards remain
after paint stabilization. Clearance is required only if paint
stabilization is conducted. The Department has the option to test
deteriorated paint and to confine paint stabilization only to those
surfaces with deteriorated lead-based paint. No requirements are
established for properties being purchased without a HUD-insured
mortgage, except for the requirements of the disclosure rule. Many of
the properties purchased
[[Page 50170]]
without HUD-insured mortgages are in need of major rehabilitation. The
cost of paint stabilization and cleanup would be substantial relative
to the value of the property, and there is a high likelihood that
subsequent rehabilitation would negate the effectiveness of the cleanup
in removing dust-lead hazards. HUD will acquaint purchasers of the
risks of generating lead-based paint hazards during rehabilitation;
this will occur during the notification and disclosure required by
subpart A of 24 CFR part 35. Approximately one-half of all HUD-owned
single family properties are purchased with HUD-insured mortgages.
This subpart does not require specific action regarding an
environmental intervention blood lead level child. Less than 1 percent
of single family properties are occupied when HUD acquires ownership,
and, in most cases, HUD-owned single family property is vacant within
three months of the transfer of ownership to HUD. Further, HUD-owned
single family properties are generally sold within six months after
acquisition. Because of the limited occupancy and relatively short HUD
involvement with these properties, the Department finds it
impracticable to impose environmental intervention blood lead level
requirements.
7. Subpart G-Multifamily Mortgage Insurance. This subpart sets out
the requirements for the Department's multifamily mortgage insurance
programs. As in the proposed rule, applications for mortgage insurance
in connection with a refinancing transaction are excluded from coverage
if an appraisal is not required under the applicable procedures
established by HUD. This exemption, which affects applications under
section 223(a)(7) of the National Housing Act, is sensible because the
properties are already under mortgage insurance, the mortgage amount is
not being changed, there is no equity-take out, and the processing is
very streamlined, often involving no on-site inspection by HUD.
The proposed rule required visual assessment for deteriorated
paint, paint repair and cleanup for these programs. One commenter said
that the HUD regulation will serve as ``a model standard of care for
the private mortgage insurance industry'' and asked that HUD require
the implementation of essential maintenance practices, risk assessments
and lead hazard controls in all pre-1960 multifamily insured
properties, and essential maintenance practices and risk assessments in
all other federally insured properties. HUD agrees that rental housing
must receive greater protection from lead-based paint hazards than
owner-occupied housing because tenants have less ability than owners to
make the repairs necessary to reduce hazards. The Department has
revised, therefore, the procedures of the proposed rule to ensure, to
the extent HUD considers practicable, that pre-1960 units are free of
lead-based paint hazards and that the risk of lead exposure is
minimized in housing built after 1959.
A major housing industry organization pointed out that it would not
be practicable to implement the proposed-rule requirement that
deteriorated paint in a multifamily property be repaired ``before the
issuance of a firm commitment,'' because it would compel a mortgagor to
expend sums on paint repair ``based on chance and speculation.'' Other
factors could prevent issuance of the commitment, or market conditions
might prevent closing on the commitment's terms. It was suggested that
HUD escrow 125-150% of the estimated cost of the repair work, and
permit the paint to be repaired within 90 days after closing, using a
repair escrow. The Department has addressed this comment by providing
for a repair escrow in the final rule.
In the final rule, a multifamily insured property constructed
before 1960 must have a risk assessment before the issuance of a firm
commitment, and interim controls of identified lead-based paint hazards
must be completed before firm commitment or made a condition of the
sale and insurance agreement with sufficient funds escrowed. Also,
there must be notices to occupants regarding the results of the
evaluation and hazard reduction. The sponsor must also agree to
incorporate ongoing lead-based paint maintenance into regular building
operations. Ongoing maintenance activities in this final rule are
comprised of many of the same elements as the essential maintenance
practices recommended by the Task Force. The Department is not
requiring reevaluation in housing covered by this subpart, because
there is no continuing Federal subsidy. For a multifamily insured
property constructed after 1959 and before 1978, no evaluation or
hazard reduction is required in the final rule; but for these
properties, the sponsor must agree to incorporate ongoing lead-based
paint maintenance practices into regular building operations. Due to
the limited relationship between the purchaser and the Federal
government, HUD deemed it impracticable to include in this subpart
requirements for responding to a child with an environmental
intervention blood lead level. In cases where multifamily mortgage
insurance is combined with another HUD program (e.g., project-based
assistance), the environmental intervention blood lead level
requirements for that program would apply.
A new section has been added to this subpart of the final rule to
clarify Departmental mortgage insurance policy on lead-based paint in
buildings being converted from nonresidential use to multifamily
residential use (conversions) and in multifamily residential properties
undergoing major rehabilitation. Major rehabilitation is defined as
rehabilitation that is estimated to cost more than 50 percent of the
estimated replacement cost after rehabilitation. The requirement for
both types of property is that all lead-based paint be abated and that
the abatement methods be, to the extent practicable, paint removal or
component replacement. Enclosure or encapsulation may be used if paint
removal or component replacement are not practicable, as for example if
they would damage substrate material considered architecturally
significant. If the building is an historic property, interim controls
can be used at the request of the State Historic Preservation Office
(as explained in Section III.E.2.b of this preamble, above).
HUD considers conversions and major rehabilitations a special case
because they usually involve major renovation of the interior,
including new partitioning, new heating, ventilating, mechanical and
electrical systems, plus new windows and doors. Also, conversions are,
in effect, newly built housing. Such major construction activity
provides an opportunity to remove lead-based paint and thus assure that
such properties will be free of any possibility that lead-based paint
hazards will be generated in the future as a result of the disturbance
of paint during building operations, maintenance or future renovations.
The incremental cost of abatement of all lead-based paint relative to
the total conversion or rehabilitation cost will, in most cases, be
modest, and, once done, the properties will be free of lead-based paint
requirements, except to monitor any encapsulation or enclosure
treatments or to engage in ongoing lead-based paint maintenance if
interim controls are used in an historic property.
8. Subpart H-Project-Based Rental Assistance. This subpart sets out
the requirements for the Department's project-based rental assistance
programs. The Indian Housing Block Grant Program has been added as a
covered program under this subpart.
[[Page 50171]]
The legislative history of Title X indicates that it was the intent
of Congress that the requirements of a risk assessment and interim
controls would apply to housing receiving project-based assistance.
Therefore these procedures are required in the final rule, as they were
in the proposed rule. The final rule also requires ongoing maintenance
and reevaluation to assure that the housing remains lead safe, which is
similar to the monitoring requirement in the proposed rule, and it has
additional requirements to respond to a case of a child with an
environmental intervention blood lead level, as did the proposed rule.
There is ample evidence, however, in the statute and in legislative
history that Congress felt that evaluation and hazard reduction
requirements should be reasonably related to the level of Federal
financial assistance. Therefore, as in the proposed rule, the
requirements of a risk assessment and interim controls apply only to
multifamily properties receiving more than $5,000 per dwelling unit
annually in project-based rental assistance, calculated as an average
of per assisted unit. For all other properties receiving project-based
rental assistance under a HUD program, the initial evaluation and
hazard reduction requirements are: A visual assessment to identify
deteriorated paint, stabilization of deteriorated paint, and clearance
(if paint stabilization is required). This less stringent requirement
applies to multifamily properties receiving an average of up to and
including $5,000 per assisted dwelling unit annually in project-based
rental assistance and all single family properties receiving Section 8
Moderate Rehabilitation or Project-Based Certificate assistance or
project-based rental assistance from another HUD program. The
stringency of the requirement is less for these properties because the
amount of financial assistance is less and because the Department
wanted to relieve owners of single family rental property with limited
financial resources from the more extensive lead-based paint
requirements that apply to owners of large multifamily projects with a
high level of rental assistance. On average, the costs per dwelling
unit of evaluation and hazard reduction are significantly higher for
single family than for multifamily housing.
A commenter believed that the rule's definition of ``project-based
assistance'' could be read to include assistance delivered by local
governments using HUD's Community Planning and Development (CPD)
program funds. It is the Department's expectation and intent that most
housing-related programs using CPD program funds will be covered by
subparts J (rehabilitation), K (acquisition, leasing, support services,
and operation), and M (tenant-based rental assistance). However, a CPD-
funded program may be covered by subpart H if it is providing rental
assistance that is tied to a particular property through contract or
agreement.
The Department has decided that the term ``project-based'' should
be given its traditional meaning of housing assistance payment programs
where the funding is tied to the residential property and not to the
tenant. Further, the requirement for risk assessment only makes sense
when it is applied to traditionally ``project-based'' housing
assistance payment programs, where HUD maintains an ongoing
relationship with the owner and is able to require a phase-in of risk
assessment requirements.
Section 1012 of Title X (at 42 U.S.C. 4822(a)(1)(B)) sets out a
schedule in which risk assessments and interim controls must be
performed, i.e., all pre-1960 dwelling units before January 1, 1996; 25
percent of 1960-1978 dwelling units by January 1, 1998; not less than
50 percent of 1960-1978 dwelling units by January 1, 2000; and the
remainder by January 1, 2002. The Department is not issuing a final
lead-based paint rule in time to meet the January 1, 1996 deadline.
Therefore, the Department has delayed the start of the risk assessment
schedule but is establishing an expedited phase-in schedule that is
somewhat simpler than that in the statute: September 17, 2001, for
properties constructed before 1960, and September 15, 2003, for
properties constructed after 1959 and before 1978.
This risk assessment phase-in schedule applies only to multifamily
properties receiving more than $5,000 per unit annually in project-
based rental assistance. The schedule for all other properties covered
by subpart H is based on the schedule of initial or periodic
inspections.
The revised schedule for risk assessments is based on the comments
received on the proposed rule's risk assessment schedule, and it also
takes into account the delay in meeting the deadlines established by
the Congress. It is HUD's view that the revised schedule still provides
adequate time for education and training in order to implement the new
technical standards, requirements and procedures. The proposed rule
provision that allows the Secretary to develop an alternative schedule,
if necessary, remains in this subpart. The provision was included to
provide the Department with flexibility in working with HUD clients
whose housing assistance payment contracts are due to expire close to
the required date for completing risk assessments--an issue raised by
commenters.
The final rule does not include the proposed rule's requirement
that an owner develop a hazard reduction plan. The hazard reduction
plan, a concept suggested by the Task Force, was intended to provide
the owner with flexibility to design his or her own schedule for
completing interim controls. However, it was perceived by commenters
and by the Department to be a paperwork requirement that could be a
burden for owners and an unsolvable administrative problem for the
Department. HUD has established, therefore, the following schedule for
interim controls: Dwelling units occupied by families with children
under 6 years of age and common areas servicing those units shall have
interim controls completed no later than 90 days after the completion
of the risk assessment for those units. Dwelling units not occupied by
families with children under 6 years of age, common areas servicing
those units, shall have interim controls completed within 12 months of
the completion of the risk assessment for those units. If the owner
chooses to conduct standard treatments rather than a risk assessment
and interim controls (see ``Options'' above), standard treatments for
units occupied by children of less than 6 years of age must be
completed no later than 90 days after the final date for completion of
a risk assessment, and for other units no later than 12 months
following the final date for completion of a risk assessment.
Completion of standard treatments as well as interim controls includes
clearance testing.
These policies regarding interim controls and the standard
treatment option must be complied with only by owners of properties
receiving more than $5,000 per unit annually in project-based rental
assistance. Other properties must complete paint stabilization and
clearance, if needed, within 30 days of receiving notification of the
results of the visual assessment.
HUD assumed in drafting the proposed rule that multifamily
properties receiving more than $5,000 per unit annually in project-
based rental assistance would be subject to the same lead-based paint
requirements that currently apply until they are required to comply
with this new regulation. Commenters pointed out that more clarity and
precision is needed on requirements during the phase-in period.
Therefore the Department is adding to this subpart a paragraph on
transitional requirements that will be
[[Page 50172]]
effective on September 15, 2000. Until the phase-in date that is
applicable to a property, or until the owner conducts a risk
assessment, whichever is first, the owner must practice ongoing lead-
based paint maintenance. This consists mainly of three activities: (1)
Visually assessing, at least once a year, the condition of painted
surfaces to identify deteriorated paint; (2) stabilizing any
deteriorated paint; and (3) using safe work practices when performing
any maintenance or renovation that disturbs paint that may be lead-
based paint.
As explained in Section III.D.6 of this preamble, above,
environmental intervention blood lead level requirements that apply to
this subpart have been revised.
9. Subpart I-HUD-Owned and Mortgagee-in-Possession Multifamily
Property. In the proposed rule, two subparts addressed the disposition
of HUD-owned multifamily property; one subpart set out the requirements
that would apply when sufficient appropriations were available to
comply with the statutory requirements of section 1013, and another set
out the requirements in the absence of sufficient appropriations. The
section 1013 requirements are: for pre-1960 properties, an inspection
and risk assessment followed by abatement of lead-based paint hazards,
and, for properties built after 1959 and before 1978, an inspection and
risk assessment followed by disclosure. In the absence of sufficient
appropriations, the proposed rule called for a visual evaluation to
identify deteriorated paint followed by repair of deteriorated paint
and cleanup of the worksite. Additional requirements were included in
the case of a child with an environmental intervention blood lead
level, and monitoring of paint conditions was required for properties
retained in the HUD-owned inventory for more than one year. No
distinction was made for the period of construction, e.g., before or
after 1960.
In the final rule, the Department has removed the appropriations
distinction, and set forth a single policy under this subpart, as
discussed under Section III.A.3 of this preamble, above. The
Department's intent in setting lead-based paint policy for HUD-owned
and mortgagee-in-possession multifamily property in this final rule is
to make the requirements similar to those for multifamily properties
receiving more than $5,000 per unit annually in project-based rental
assistance while recognizing the intent of Congress as expressed in
section 1013 of Title X. HUD finds no reason to require of itself a
less stringent standard than it requires of private owners of assisted
multifamily housing. The Department must conduct a lead-based paint
inspection and risk assessment before publicly advertising the property
for sale, followed by interim controls of all identified lead-based
paint hazards. A lead-based paint inspection is required as well as a
risk assessment so information on the location of lead-based paint can
be given to the purchaser pursuant to the disclosure rule at subpart A
of 24 CFR part 35, who can then use it to assure that lead-based paint
hazards are not generated inadvertently during future maintenance or
renovation work. For dwelling units occupied by families with children
of less than 6 years of age and common areas servicing such units,
interim controls shall be completed no later than 90 days after the
completion of the risk assessment; while dwelling units not occupied by
families with children younger than 6 and associated common areas must
have interim controls and clearance completed no later than 12 months
after the risk assessment. If a unit becomes newly occupied by a family
with a child of less than 6 years of age or such a child moves into a
unit, interim controls must be completed within 90 days after said
move-in if they have not already been completed. The schedule for
completion of standard treatments is also the same as for multifamily
housing receiving more than $5,000 per unit annually in project-based
rental assistance. The Department must provide a notice to occupants if
evaluation or hazard reduction is undertaken.
If conveyance of the title by the Department at a sale of a HUD-
owned property or a foreclosure sale caused by the Secretary when HUD
is mortgagee-in-possession occurs before the required schedule for
completion of interim controls or standard treatments, the Department
must complete the hazard reduction before conveyance or foreclosure
sale, or the Department shall be responsible for assuring that interim
controls are carried out by the purchaser according to the following
schedule: (1) In units occupied by families with children of less than
6 years of age and common areas servicing such units, no less than 90
days after the date of closing of the sale or 90 days after a family
with a child less than 6 moves in; and (2) in all other units and
associated common areas, no later than 180 days after the closing of
the sale. The schedule for completion of hazard reduction by the
purchaser is keyed to the closing date, because it is only at that time
that the purchaser can begin to make firm arrangements to conduct the
treatments; but the duration of time from the closing date is somewhat
less than that which HUD must meet in relation to the risk assessment
date because of concern that the risk assessment may go out of date.
Similar to requirements for multifamily properties receiving project-
based assistance, ongoing maintenance and reevaluation are required
under this subpart if the Department retains ownership of the property
for more than 1 year.
This subpart requires specific actions in response to a child with
an environmental intervention blood lead level; the requirements are
similar to those for housing receiving project-based rental assistance.
10. Subpart J-Rehabilitation. This subpart sets out the
requirements for the Department's programs which provide assistance for
housing rehabilitation. The majority of this assistance is provided
through programs administered by the Office of Community Planning and
Development (CPD), principally the Community Development Block Grant
program and the HOME program. Other rehabilitation assistance is
provided under the Flexible Subsidy-Capital Improvement Loan Program
(CILP) and the Mark-to-Market Program for multifamily property.
Rehabilitation assistance may also be provided under the Indian
Community Development Block Grant Program and the Indian Housing Block
Grant Program. This subpart does not apply to the following HUD
programs that may have rehabilitation activities: Mortgage insurance
programs, the Section 8 Moderate Rehabilitation program, and the public
housing modernization programs. Those programs are covered by other
subparts.
The requirements of Title X pertaining to federally assisted
residential rehabilitation are quite specific. The statute sought to
take advantage of the rehabilitation event as a cost-effective
opportunity to sharply reduce lead-based paint hazards in the assisted
stock. Many types of rehabilitation, such as window replacement or
installation of new walls or doors, often reduce lead-based paint
hazards. Section 1012 requires at a minimum: (1) Inspection for the
presence of lead-based paint prior to federally-funded renovation or
rehabilitation that is likely to disturb painted surfaces; (2) interim
controls of lead-based paint hazards in housing receiving less than
$25,000 per unit in Federal rehabilitation assistance; and (3)
abatement of lead-based paint hazards
[[Page 50173]]
in housing receiving more than $25,000 per unit.
Among those commenters on the proposed rule who directed their
remarks towards specific HUD programs, the rehabilitation programs drew
by far the most attention, largely because compliance was perceived as
complex and costly. Some commenters felt that the rule would reduce the
impact that rehabilitation assistance funds can have on the community
and would make smaller communities determine that rehabilitation
projects are ``not worth it.'' Pointing out that some local
rehabilitation assistance is provided in the form of a loan, local
agencies feared that they would have difficulty getting homeowners to
borrow the additional funds needed to comply with the lead-based paint
hazard reduction requirements. As a long time proponent and funder of
housing rehabilitation, the Department understands and shares these
concerns and has attempted to provide local agencies with ways to
incorporate as efficiently as possible the statutory requirements of
Title X into their rehabilitation programs.
At the outset, it should be noted that rehabilitation that does not
disturb a painted surface is exempt from this rule. Thus, for example,
roof repairs or heating system improvements are likely to be exempt
unless such activities disturb painted surfaces.
In both the proposed rule and the final rule, HUD has interpreted
the statutory requirement of a lead-based paint inspection to apply
only to surfaces to be disturbed by rehabilitation. In the proposed
rule this procedure was called a ``limited paint inspection.'' In
response to concerns of EPA regarding possible confusion if the word
``inspection'' is used differently than in EPA regulations, HUD is
using the term ``paint testing'' instead (see Section III.E.2.c. of
this preamble, above). Furthermore, HUD provides the option of either
conducting paint testing of the painted surfaces to be disturbed or
replaced during rehabilitation or presuming that all such painted
surfaces are coated with lead-based paint. Paint testing is not
necessary if a complete lead-based paint inspection has been conducted
of the property.
In the final rule as well as in the proposed rule, the Department
has added a category of housing receiving up to and including $5,000
per unit in Federal rehabilitation assistance to allow a lower level of
lead-based paint treatment for rehabilitation of modest expenditure.
HUD's intent in setting requirements for housing in this category of
assistance is to allow low level rehabilitation to occur without
incurring the full expense of the statutory lead-based paint
requirements but at the same time to minimize the possibility of
exposure to lead-based paint hazards as a result of the assisted
rehabilitation work. This has been referred to as a ``do-no-harm''
policy. The impact of this policy is significant. HUD estimates that
the average amount of rehabilitation assistance per unit from the
Community Development Block Grant program is between $5,000 and $6,000.
The proposed rule would have required visual assessment to identify
deteriorated paint on surfaces to be disturbed by rehabilitation,
repair of such deteriorated paint surfaces, and cleanup of the
worksite. The final rule requires paint testing of surfaces to be
disturbed or presumption of lead-based paint, and, if the paint is
found or presumed to be lead-based paint, the following are required:
safe work practices (as specified in subpart R of the final rule)
during rehabilitation, repair of any paint disturbed during
rehabilitation, and clearance of the worksite. The main differences
between the proposed and final rules are (1) the more explicit emphasis
on safe work practices during rehabilitation as the way to avoid
causing exposure to lead-based paint hazards, and (2) the clearance
requirement, which assures that no lead-based paint hazards are left at
the worksite. The worksite consists of only those rooms or areas where
the rehabilitation is conducted. Safe work practices include the
following: Not using prohibited practices of paint removal, occupant
protection and worksite preparation, and specialized cleaning. These
practices were included in the requirements of the proposed rule for
paint repair. HUD estimates that the average cost per unit of complying
with today's rule for housing receiving no more than $5,000 in Federal
rehabilitation assistance will be approximately $150 for single family
and $115 for multifamily units.
For housing receiving more than $5,000 and up to and including
$25,000 in Federal rehabilitation assistance, the final rule makes one
significant change to the requirements in the proposed rule (which
derive directly from the statute), and that is the standard treatment
option. This option allows the use of standard treatments (as suggested
by the Task Force; see Section III.D.3 of this preamble, above) instead
of conducting a risk assessment and interim controls. If standard
treatments are used, no evaluation is required. Standard treatments
include stabilization of deteriorated paint, the provision of smooth
and cleanable horizontal surfaces, the correction of conditions causing
rubbing, binding or crushing of painted surfaces, and the treatment of
bare soil--all using safe work practices and followed by clearance.
When conducted as a part of rehabilitation, standard treatments must
include stabilization of paint disturbed as a result of the
rehabilitation work, and clearance must be conducted after completion
of rehabilitation, as is the case if interim controls are conducted.
Standard treatments may be an appropriate option in housing in which
experience indicates there is a high likelihood of extensive lead-based
paint hazards. In such housing the risk assessment would just confirm
what is expected. Standard treatments may also be appropriate in
housing that is otherwise in good condition but is undergoing
rehabilitation in one or more confined areas, in which case the extent
of deteriorated paint, surfaces that are not smooth and cleanable, and
dust-generating conditions might be minor. Another potential advantage
of standard treatments is that they are a known and limited group of
activities that crews can be trained to perform efficiently. A possible
disadvantage is that such treatments may be performed unnecessarily on
surfaces without lead-based paint, because no testing is conducted.
In Title X, the statutory requirement for hazard reduction in
properties receiving more than $25,000 per unit in Federal
rehabilitation assistance is ``abatement of lead-based paint hazards in
the course of substantial rehabilitation projects.'' In the proposed
rule, the statutory phrase ``in the course of * * * rehabilitation''
was interpreted to mean that lead-based paint hazards on surfaces to be
disturbed by rehabilitation were to be abated (i.e. permanently
eliminated), while hazard reduction (which includes less costly, but
more temporary, interim controls as a minimum) could be conducted on
lead-based paint hazards on other surfaces. This interpretation was
questioned by those who thought the Congress meant that all lead-based
paint hazards should be abated in these major rehabilitation projects,
regardless of whether the surface was or was not being disturbed by the
rehabilitation. Supporters of the proposed-rule interpretation claimed
that the cost of abating lead-based paint hazards on the exterior of
old houses with wood siding would be exorbitant. In the final rule, the
Department has revised the proposed-rule requirement to require
abatement of all lead-based hazards
[[Page 50174]]
identified by paint testing and/or a risk assessment and any lead-based
paint hazards created as a result of the rehabilitation work, except
that interim controls are acceptable on exterior surfaces that are not
disturbed by rehabilitation.
HUD believes that the exemptions and options in this rule provide
designated parties with enough flexibility to achieve the statutory
objectives with maximum efficiency. For instance, in very old housing
with a high likelihood of extensive lead-based paint and undergoing
Federally assisted rehabilitation of between $5,000 and $25,000 per
unit, the grantee, participating jurisdiction or CILP recipient may
find it most efficient to forego the evaluation, presume the presence
of lead-based paint and lead-based paint hazards, and conduct standard
treatments using trained and efficient crews. Conversely, if the
presence of lead-based paint or lead-based paint hazards is
questionable, a grantee, participating jurisdiction or CILP recipient
may choose to test the paint and conduct a risk assessment to determine
whether it is necessary to treat all, some or any of the paint as lead-
based paint.
Beyond the broad objections regarding the cost impact of the rule,
commenters had many questions and concerns. A frequent complaint among
commenters was their inability to determine, from the proposed rule,
``exactly what rehabilitation is, what are rehab soft costs, and
exactly what activities are to be used to determine the various types
of costs.'' In the final rule, HUD has adopted the policy that the
determination of the category of assistance (up to and including
$5,000, more than $5,000 and up to and including $25,000, or more than
$25,000) will be based on the hard costs of ordinary rehabilitation,
not including the additional costs of complying with this rule. The
Department has made efforts to clarify the definition of hard and soft
rehabilitation costs through the use of examples.
A commenter also questioned the Department's decision not to
include additional provisions for dwellings occupied by children with
environmental intervention blood lead levels under rehabilitation-
related rules. In general, the requirements for units receiving
rehabilitation assistance of more than $5,000 (risk assessment and
either interim controls or abatement of lead-based paint hazards) are
similar to or more stringent than the activities that would be required
in the case of an environmental intervention blood lead level child.
Also, rehabilitation assistance is usually provided at one point in
time, so there is often no continuing financial involvement of HUD with
the property. However, in the case of a multifamily property receiving
Federal rehabilitation assistance under the HOME program or the
Flexible-Subsidy-CILP program, the grantee, participating jurisdiction
or CILP recipient must require the property owner to incorporate
ongoing lead-based paint maintenance activities into regular building
operations. Ongoing lead-based paint maintenance practices are designed
to ensure that new lead-based paint hazards do not occur in the
property.
A commenter representing developers noted that ``subrecipient'' was
defined to exclude an owner or developer receiving rehabilitation
assistance. ``Thus the responsibility of performing subrecipient duties
must fall on the local government grantee.* * *'' The commenter urged
that the final rule permit duties to be delegated to the owner or
developer, with only monitoring and oversight functions necessarily
remaining with local government grantees. Although many of the
requirements under this subpart refer to the grantee or participating
jurisdiction, as is the case with many CPD programs, it is the
Department's intent that the grantee or participating jurisdiction may
require virtually all of these functions to be performed by a
subrecipient or other designated party. The exclusion of an owner or
developer, however, from the definition is retained in the final rule
to permit at least some degree of independent oversight of the use of
public funds.
Another funded agency commenter said that the rule's requirements
would ``cripple'' the agency's ancillary programs. The commenter stated
that the agency provides funds to an organization that implements an
emergency rehabilitation program for county residents. This program,
the commenter argued, is staffed by volunteers, and will not be able to
comply with the extensive lead-based paint requirements. The Department
has attempted to respond to this concern by tailoring the requirements
to the amount of Federal assistance. While even the minimum
requirements of the $5,000-or-less category may require workers to
undergo a modest amount of training, such training may be necessary to
protect children who may live in the unit, and it should not be
inefficient where such workers are volunteers who work on multiple
projects.
In the final rule, the Department has established separate
requirements for insular areas operating rehabilitation programs under
the HOME and Community Development Block Grant (CDBG) programs. Insular
areas include the U.S. Virgin Islands, Guam, Northern Mariana Islands,
and American Samoa. The requirements for insular areas are less
stringent than the regular requirements for properties receiving more
than $5,000 per dwelling unit in Federal rehabilitation assistance.
There is no difference in requirements for properties receiving up to
$5,000 per unit in rehabilitation assistance. The rationale for the
lesser requirements is that insular areas do not currently have the
capacity to comply with more stringent requirements applicable to other
CDBG grantees and HOME participating jurisdictions, nor is it likely
that capacity can be developed in the foreseeable future. The remote
location of the insular areas, their small populations and the limited
volume of HOME- and CDBG-funded housing activity makes the development
of a competitive lead ``industry'' (i.e., certified lead inspectors,
risk assessors and contractors) unlikely.
For properties receiving more than $5,000 per unit in
rehabilitation assistance, the final rule requires, in insular areas,
stabilization of all deteriorated paint and paint being disturbed by
rehabilitation instead of the normal requirements of a risk assessment
and interim controls or abatement of lead-based paint hazards. (As is
always the case, stabilization is not required of paint found by a
certified lead-based paint inspector not to be lead-based paint.) Safe
work practices must be used, including occupant protection, worksite
preparation and clearance. HUD believes that clearance is very
important and that, if laboratory analysis of dust samples is not
available on an island, it can be obtained at reasonable cost through
air mail of samples and electronic response by the laboratory, as is
often the practice elsewhere in the United States.
These separate requirements for rehabilitation assistance of more
than $5,000 per unit in insular areas are protective of children and
other occupants. They are the same as those in the final rule for units
receiving tenant-based rental assistance (subpart M), assistance for
acquisition, leasing, support services or operation (subpart K), and
HUD-owned single family properties at disposition (subpart F). However,
when undertaking Federally-funded rehabilitation, the Department
encourages insular areas to use, to the maximum extent feasible and in
consultation with their respective Field Office, the more rigorous and
thorough
[[Page 50175]]
methods and procedures required of other grantees and participating
jurisdictions in subpart J.
Finally, subpart J requires that all occupants shall be provided
with the lead hazard information pamphlet by the grantee, participating
jurisdiction or CILP recipient (or their representative). In all cases
where evaluation or hazard reduction or both are undertaken, each
grantee, participating jurisdiction or CILP recipient shall post or
distribute a notice to occupants of the results of the evaluation. The
grantee, participating jurisdiction or CILP recipient shall also post
or distribute a notice of the results of the hazard reduction
activities.
11. Subpart K--Acquisition, Leasing, Support Services, or
Operation. This subpart sets out the requirements for certain CPD
programs and the Indian Community Development Block Grant program and
the Indian Housing Block Grant program when such programs are providing
Federal funding for acquisition, leasing, operating or support services
for a residential property. In the proposed rule, this subpart was
entitled ``Community Planning and Development (CPD) Non-Rehabilitation
Programs.'' The title has been changed because of the addition of
Indian programs to the coverage of the subpart and because the new
title is more descriptive than the term, ``non-rehabilitation,'' used
in the proposed rule. The main CPD programs that fund activities
covered by this subpart are the HOME program, the Community Development
Block Grant program, the Supportive Housing program, the Emergency
Shelter Grant program, and Housing Opportunities for Persons with AIDS
(HOPWA). Persons with AIDS are considered persons with disabilities, so
assisted housing for them is exempt from the rule except when there is
a child of less than 6 years of age who resides or is expected to
reside in the dwelling unit.
Examples of the types of housing assistance to which subpart K
applies are acquisition or leasing of a homeless facility, downpayment
assistance, mortgage and utility payments for persons with AIDS (if a
child under 6 resides), and payment of security deposits. Other
examples are payment of the day-to-day operating expenses of housing
for the homeless and assistance for various support services that are
provided on site at a residential facility, such as child care,
employment assistance, outpatient health care including drug treatment
or counseling, case management, nutritional counseling, security
arrangements, and assistance in getting permanent housing.
For properties built between 1950 and 1978, the lead-based paint
requirements for these activities in the proposed rule were visual
assessment, paint repair and cleanup. For properties built before 1950,
the requirements were visual assessment, dust testing for the presence
of dust-lead hazards, paint repair, cleanup of the dwelling unit if the
dust testing finds dust-lead hazards, or cleanup only of the paint-
repair worksite if the dust testing does not find dust-lead hazards. In
certain instances, ongoing monitoring of paint conditions was required.
For all activities, provision of the pamphlet developed by EPA under
TSCA section 406 was required.
Some commenters expressed concern regarding the adverse impact that
these requirements would have on small-grant acquisition assistance
programs. The Department believes that families receiving such
assistance should be able to move into lead-safe housing. HUD has a
statutory responsibility under the Lead-Based Paint Poisoning
Prevention Act to establish procedures that achieve that objective to
the extent practicable.
In the final rule, as in the proposed rule, HUD has set
requirements for this subpart that are the same in most aspects as
those for tenant-based rental assistance, which is covered by subpart
M. The basic strategy set forth in the final rule consists of a visual
assessment to identify deteriorated paint, stabilization of
deteriorated paint, clearance of the dwelling unit, and, where there is
a continuing and active financial relationship with the property,
ongoing lead-based paint maintenance. This procedure is the minimum
needed to assure that the housing is lead-safe. Many of the households
inhabiting residential properties assisted through programs covered by
subpart K include young children. Many of the assisted households are
homeless. A basic level of protection against exposure to lead-based
paint hazards is essential.
In the final rule, HUD has changed the proposed rule's requirement
of paint repair to paint stabilization, as it has throughout the final
rule. This is explained above in Section III.D.9 of this preamble.
Also, the dust testing requirement in pre-1950 housing has been
eliminated, and in its place the Department has required clearance of
the dwelling unit, as it has for all other HUD-assisted and HUD-owned
housing. Clearance is required, however, only if paint stabilization is
required. Also, the final rule eliminates the proposed rule's
distinction between pre-1950 and post-1949 housing. In the interest of
regulatory streamlining, a single set of requirements applies to all
pre-1978 housing. As in the proposed rule, the grantee or participating
jurisdiction must provide the lead hazard information pamphlet to all
occupants except those who have received the pamphlet under the
disclosure rule. Also, each grantee or participating jurisdiction must
provide a notice to occupants describing the results of the clearance
examination. The notice requirement does not apply to the visual
assessment but does apply to clearance results after paint
stabilization, because the clearance report provides known information
about the presence or absence of lead-based paint hazards. Finally, the
final rule requires that ongoing maintenance of painted surfaces and
safe work practices be incorporated into regular building operations,
where appropriate under HUD-administered programs.
The Department has given the grantee or participating jurisdiction
the discretion to determine whether the cost of paint stabilization and
clearance is to be borne by the owner/developer, the grantee or a
combination of the owner/developer and the grantee, based on program
requirements and local program design. This helps to ensure maximum
flexibility for local authorities and is consistent with HUD's
reinvention initiative. Because the relationship between the HUD
grantee or participating jurisdiction and the property owner or
developer is often a one-time event, HUD deemed it impracticable to
include special requirements in the case of a child with an
environmental intervention blood lead level.
12. Subpart L--Public Housing Programs. This subpart sets forth
requirements for eliminating lead-based paint hazards in public
housing. The proposed rule included Indian housing under this subpart,
but, as explained above in Section III.A.8 of this preamble, Indian
housing programs are now covered under other subparts of this rule.
Section 1012 of Title X does not specifically add new requirements to
public housing. The Senate Committee Report states that Congress did
not intend the changes to the Lead-Based Paint Poisoning Prevention Act
introduced by Title X to pose a barrier to ongoing efforts by public
and Indian housing agencies to conduct risk assessments, lead-based
paint inspections and abatement activities. According to the Report,
``the changes made by Title X to the public housing provision of the
LPPPA are intended merely to conform the terminology of Title X's
definition of terms'' (Senate Report 102-332, page 118). Nevertheless,
in order to consolidate all
[[Page 50176]]
of the lead-based paint requirements for HUD in a single place, the
Department is including subpart L for public housing in this
rulemaking. This subpart implements the requirements set out in 42
U.S.C. 4822(d)(1)(3) prior to Title X; where necessary, however, the
Department has modified these requirements in order to be consistent
with the intent of Title X. Such modifications are noted below.
The Lead-Based Paint Poisoning Prevention Act requires PHAs to
complete lead-based paint inspections of all pre-1978 family
developments by December 6, 1994. This statutory requirement has
existed since 1987. HUD has data indicating that most developments have
been inspected, as mandated by Congress. Those that have not must be
inspected no later than the effective date of this final rule, which is
September 15, 2000. Where a PHA has not complied with the statutory
requirement to complete lead-based paint inspections of pre-1978 family
units, the PHA is eligible only for Emergency Modernization or work
needed to complete the inspections as described in 24 CFR 968.210. The
Lead-Based Paint Poisoning Prevention Act also has required for many
years that PHAs abate all lead-based paint found in the inspections.
This is a continuing activity conducted at the time of modernization.
The Department's primary concern in developing this rule is with
the safety of occupants of housing developments that have lead-based
paint but have not yet been abated. In such cases, modernization (and
hence abatement) may be years or decades away, and nothing is required
in the interim to control lead-based paint hazards. In the proposed
rule, HUD set forth the following additional requirements for these
developments with the goal of assuring that they are lead-safe: visual
assessment for deteriorated paint, matching the visual assessment with
the lead-based paint inspection to identify the locations of
deteriorated lead-based paint, dust and soil testing to determine the
presence of dust-lead hazards or soil-lead hazards, and interim
controls of lead-based hazards found.
A principal concern of commenters was the financial burden, the
asserted ``unfunded requirement,'' the rule would place on public
housing agencies. Based on these financial hardships, a group
representing public housing agency interests recommended eliminating
the rule's new requirements (dust and soil testing and interim
controls) as they pertained to public and Indian housing. Acknowledging
the need for addressing the issue of lead in the environment, one
commenter asserted that most local housing agencies already had made a
good faith effort to comply with the requirement to complete lead-based
paint inspections by the end of 1994.
A more specific issue addressed by some commenters was the
acceptance by the proposed rule of dust and soil testing by non-
certified personnel. Some commenters objected to this because it
appeared to violate the requirements of EPA's regulations implementing
TSCA sections 402 and 404. Others urged HUD to establish a major
training activity to assure that public housing maintenance staff would
be able to conduct such sampling properly and interpret the results
accurately.
In the final rule, HUD is requiring that, instead of soil and dust
testing by non-certified personnel, risk assessments must be conducted
by certified risk assessors in developments with lead-based paint that
has not yet been abated. The Department has concluded after careful
consideration that it would be wasteful and ineffective to allow PHAs
to skirt the EPA certification requirements for dust and soil testing.
For further discussion of this issue, see Section III.D.8 of this
preamble, above.
Another question has to do with the reliability of the lead-based
paint inspections that have already been conducted. In a study of prior
inspections in public housing, HUD has found that approximately 13
percent of the inspections were of questionable accuracy. In the
proposed rule HUD, therefore, encouraged PHAs to engage in quality
control activities to determine whether a lead-based paint inspection
is reliable. The final rule continues this policy. HUD's Office of
Public and Indian Housing issued a detailed Notice in 1995 (PIH 95-
8(HA)) explaining how quality control can be implemented for lead-based
paint inspections that have already occurred.
The final rule also continues the proposed rule requirement that
occupants be informed of the results of all evaluation and hazard
reduction activities, and it continues the additional requirements that
are triggered if a child with an environmental intervention blood lead
level is identified in a public housing development. The basic
requirement is that a risk assessment and interim controls be completed
in the dwelling unit quickly. A more detailed explanation of the
requirements for response to a child with an environmental intervention
blood lead level is provided above in Section III.D.6 of this preamble.
Under this subpart the Department has included references to the
liability insurance provisions found in the pubic housing program
requirements. Also, the rule describes the circumstance under which a
PHA may use financial assistance received under the modernization
program for the evaluation and reduction of lead-based paint hazards,
and references sections of the public housing regulations for
additional information on eligible costs.
13. Subpart M--Tenant-Based Rental Assistance. This subpart sets
out lead-based paint requirements for the Department's tenant-based
rental assistance programs, including those operated under the HOME,
Housing Opportunities for Persons With AIDS (HOPWA), Shelter Plus Care,
and Indian Housing Block Grant programs as well as Section 8. Because
there are different types of local organizations that administer
tenant-based rental assistance under HUD programs, this subpart uses
the general term ``designated party'' to refer to housing agencies,
grantees, participating jurisdictions or Indian Housing Block Grant
recipients. Unlike other subparts, this subpart applies only to housing
occupied by families with children of less than 6 years of age.
The lead-based paint requirements for tenant-based rental
assistance in the proposed rule were virtually the same as those
proposed for the subpart now titled Acquisition, Leasing, Support
Services, or Operation (formerly CPD Non-Rehabilitation). For
properties built between 1950 and 1978, visual assessment, paint repair
and cleanup; for properties built before 1950, visual evaluation, dust
testing for the presence of dust-lead hazards, paint repair, cleanup of
the dwelling unit if the dust testing finds dust-lead hazards, or
cleanup only of the paint repair worksite if the dust testing does not
find dust-lead hazards.
Comments ranged from declarations that it was illegal under the
statute to apply the rule to tenant-based programs to assertions that
stringent lead-control standards must be applied, especially in the
case of the tenant-based programs. Commenters opposed to the
requirements argued that there exists a ``statutory, program-wide
exemption for housing receiving tenant-based Section 8 assistance.''
One commenter asserted that only landlords agreeing to accept
assistance under a section 1011 grant (i.e., the HUD Lead-Based Paint
Hazard Control Grant program) are required to adhere to requirements
associated with lead-based paint testing and control. HUD disagrees.
The Department's response to the question of the legality
[[Page 50177]]
of imposing lead-based paint requirements on tenant-based rental
assistance programs is discussed above, under Section III.A.2. of this
preamble.
Many commenters discussed the fair housing implications of the rule
because of its focus on families with young children. Some commenters
advocated simply relocating a family to another unit upon discovery of
a lead hazard (leaving the unit available for other families without
small children). Others advocated making special funding available in
pilot programs for particular localities, to finance any necessary
control or abatement activities, or providing tax or other special
incentives to owners faced with unexpected repair costs arising out of
the discovery of a lead hazard. Still other commenters advocated
coverage for all tenant-based units without regard to family makeup.
The Department believes limiting the requirements of subpart M to
dwelling units in which a family with a child less than age 6 resides
is a reasonable policy because of the unique ability of designated
parties to identify changes in the composition of an assisted family
through the income certification process. In addition, the designated
parties are able to monitor the property owner's compliance with lead-
based paint requirements through initial and periodic dwelling unit
inspections. These two safeguards will help to ensure that a designated
party will know whether a child of less than 6 years of age resides in
a dwelling unit. An owner who refuses to rent a dwelling unit to a
family with a child under the age of 6 may be in violation of the
provisions of the Fair Housing Act prohibiting discrimination on the
basis of familial status. The same possibility applies to a designated
party that requires that a family with a young child make an
involuntary relocation. (See the discussion of the requirements of
anti-discrimination statutes in Section III.D.7 of this preamble
above.)
Comments included repeated expressions of fear that the cost of
compliance with this subpart would result in a ``shortfall'' of housing
available to families with tenant-based rental assistance, and
assertions that new contractual duties were being imposed on owners
that were not a part of the owners' existing agreements with the
designated party. Landlords will be discouraged from participating,
commenters claimed, and the rule will drive up their operating costs,
without any certainty of additional compensation. Both rural housing
authorities and agencies in the largest cities worried about tight
rental markets and the inability of participating families to locate
lead-safe units.
Taking the more protective point of view, other commenters noted
that the rule's requirements for tenant-based programs were less
demanding than those set out for project-based programs and advocated
applying the stricter standards uniformly. Some commenters urged that
HUD impose the same protection that the Task Force on Lead-Based Paint
Hazard Reduction and Financing recommended for all private units. A
health department believed that because housing assistance programs
were shifting toward tenant-based assistance, ``the most stringent of
requirements probably should be on this (type) of housing.''
In considering how to respond to these comments, HUD took into
account the recommendations of the Task Force. In their report, the
Task Force recognized most of the concerns expressed by commenters on
the proposed rule, not the least of which was the fear that expensive
standards could reduce participation in the program by private
landlords. It is noteworthy that the Task Force concluded that lead-
based paint requirements for tenant-based assistance programs should be
similar to the standards recommended by the Task Force for rental
housing in general.
Under current regulations, HUD requires that designated parties
administering tenant-based rental assistance programs visually inspect
pre-1978 dwelling units that are to be occupied by children under the
age of 6 to identify defective paint, and that owners correct any
defective paint surfaces and clean up the worksite carefully. Except
for the explicit cleanup requirement, which was issued in 1995, these
requirements have been part of the Housing Quality Standards (HQS) for
over ten years.
In the final rule, as in the proposed rule, HUD is retaining the
requirement of a visual assessment to identify deteriorated paint to be
performed usually by a housing quality inspector at initial and
periodic inspections. (There is no effective difference between the
meaning of ``defective paint,'' the term used in the current
regulations, and ``deteriorated paint,'' which is the term used in
Title X.) Also, the final rule retains the proposed rule requirement
that such inspectors be trained to perform the activities required of
them by this rule. The Department is developing a training course that
will enable such inspectors to meet this requirement. The purpose of
the course is to assure that persons performing the visual assessment
understand why they are doing it, what they should look for, and why
deteriorated paint should be stabilized. The course was pilot tested in
1998 and will be available well before the effective date of this final
rule.
The basic concept of treating defective paint is being retained,
but the final rule modifies the details of the standard applying to
that requirement. First, as explained above in Section III.D.4 of this
preamble, the minimum area of defective paint that must be treated has
been changed. The minimum that was promulgated in the Housing Quality
Standards in 1995, and was included in the proposed rule, is being
withdrawn at the request of many housing agencies, health departments
and other commenters who found it complicated, difficult to administer,
and contrary to the purpose of the regulations. As was the case before
1995, all deteriorated paint must be treated.
Second, the painted surfaces that are subject to the rule have
changed.
Current requirements apply to all interior surfaces within the
dwelling unit, the entrance and hallway serving the unit in a multi-
unit building, and exterior surfaces up to five feet from the floor or
ground that are readily accessible to children under 6 years of age,
but excluding outbuildings. The proposed rule was the same as the
current regulations, except for the addition of playground equipment
and fences surrounding an exterior play area. The final rule sets no
limits to the surfaces covered by the requirement, saying only that the
designated party shall conduct a visual assessment of ``all painted
surfaces.'' It is HUD's intent that such surfaces shall include all
surfaces within the dwelling unit, all surfaces on the exterior of the
structure regardless of height from the ground, and all common areas
servicing the dwelling unit. The definition of ``common area'' in the
rule includes all areas on the property available for use by occupants
of more than one unit, including outbuildings such as garages.
Third, in the final rule the details regarding the method of
treatment are somewhat different than those in current regulations and
in the proposed rule. Current regulations require removal of defective
paint (using specified acceptable methods) and covering surfaces ``with
durable materials with joints and edges sealed and caulked as needed to
prevent escape of dust.'' The proposed rule called for ``paint
repair'', which was repainting with proper surface preparation using
safe practices and including occupant protection and cleanup. The final
rule requires ``paint stabilization,'' which is the same as
[[Page 50178]]
paint repair except that it includes the additional requirement that
any physical defect in the substrate that is causing deterioration be
repaired. Such defects include dry-rot, rust, moisture, crumbling
plaster, and missing siding or other components that are not securely
fastened. As discussed above in Section III.D.9 of this preamble, HUD
is uniformly requiring paint stabilization across this final rule,
because otherwise the treatment of the deteriorated paint will be
ineffective.
The fourth change to the standard for treating deteriorated paint
is the requirement in the final rule that there be clearance of the
dwelling unit if paint stabilization is conducted. As explained above,
this is also a uniform requirement across this rule whenever hazard
reduction is conducted. It does not exist in current regulations nor
was it required for tenant-based rental assistance programs in the
proposed rule. HUD believes unit-wide clearance is an essential factor
in establishing that a dwelling unit is lead safe, and therefore is
requiring that clearance tests be conducted by certified risk assessors
or certified lead-based paint inspectors. The final rule eliminates the
dust testing requirement for pre-1950 housing that was in the proposed
rule and the distinction between pre-1950 and post-1949 housing. In the
interest of regulatory streamlining, a single set of requirements
applies to all pre-1978 housing.
All occupants shall be provided the lead hazard information
pamphlet by the owner, except that a pamphlet does not have to be
provided if it has already been provided by the owner or other
designated party pursuant to the disclosure rule. Also, the owner must
provide a notice to occupants describing the results of the clearance
examination. Finally, the final rule requires that ongoing maintenance
of painted surfaces and safe work practices be incorporated into
regular building operations, where appropriate under HUD-administered
programs.
HUD estimates in the Economic Analysis for this rule that the
average cost of the new requirements imposed by this subpart will be
approximately $250 per unit in single family units and $100 per unit in
multifamily units during the first year after the effective date. In
subsequent years, costs will doubtless be less. Net benefits are
clearly positive. For single family units, the estimated average net
benefit (benefits minus costs) is $850 per unit using a discount rate
of three percent for increased lifetime earnings and $125 per unit
using a seven percent rate. For multifamily units, the comparable net
benefits are $840 and $150. For further information on costs and
benefits of the rule, see Section VI. of this preamble, below.
Another subject of public comment was the policy on responding to
the existence of an environmental intervention blood lead level child
in the home of a family receiving tenant-based rental assistance. Some
commenters felt that the proposed policy of requiring a risk assessment
and interim controls would reduce participation in the program by
property owners. HUD believes that compliance with the basic policy of
paint stabilization and unit clearance, combined with ongoing
maintenance is so inexpensive and will so reduce the likelihood of
environmental intervention blood lead level cases in these dwellings
that landlords will not leave the program. To ensure that the
designated party is aware of environmental intervention blood lead
level cases in assisted families, the final rule clarifies the
requirements of the proposed rule for exchanging information between
public health departments and designated parties and matching
environmental intervention blood lead level addresses with those of
assisted families. (See further discussion in Section III.D.6 of this
preamble, above.) Also, for purposes of clarity, the rule states that
if a dwelling unit does not comply with the requirements of this rule,
the unit does not meet Housing Quality Standards (HQS). If a family is
occupying a unit that is out of compliance, the designated party may
offer the family the right to move to another unit. If the family
refuses to move, the designated party may curtail assistance.
14. Subparts N-Q reserved.
15. Subpart R--Methods and Standards for Lead--Based Paint Hazard
Evaluation and Reduction Activities. This subpart replaces part 37 of
the proposed rule. It is shorter than the proposed part 37 because it
references methods and standards established by EPA-authorized State or
tribal programs or by EPA itself for risk assessment, lead-based paint
inspection and abatement. Revised, streamlined sections are provided on
interim controls (including paint stabilization), occupant protection
and worksite preparation, and ongoing lead-based paint maintenance and
reevaluation (called ``monitoring'' in the proposed rule). New sections
are provided on standard treatments and safe work practices, concepts
recommended by the Task Force (see Section I.D.2 of this preamble,
above).
a. Standards. Although HUD defers to a large extent to methods and
standards set by States, Indian tribes or EPA for lead-based paint
inspections, risk assessments, lead-hazard screens and abatements, the
Department is requiring that Federal standards for lead-based paint,
dust-lead hazards and soil-lead hazards be used when conducting
evaluations and hazard reductions in housing covered by this final rule
unless a State, tribal or local government requirement is more
protective.
As explained above in Section III.D.4 of this preamble, above, the
standard for deteriorated paint in the proposed rule contained de
minimis areas that are not included in the final rule. The definition
of lead-based paint, however, is the same. HUD is including interim
standards for dust-lead hazards and soil-lead hazards pending effective
EPA standards pursuant to TSCA section 403. The interim standard for
soil-lead hazards, and the concentration for abating bare soil, are
unchanged from the proposed rule; but the interim dust-lead standards
have changed. The proposed dust-lead standard for risk assessments and
reevaluations was 100 g/sq.ft (micrograms per square foot) for
interior floors (both hard and carpeted) and 500 g/sq.ft for
interior window sills; there was no proposed standard for window
troughs (sometimes called window wells); the standards for clearance
were the same as for risk assessments; and there was no standard for
lead hazard screens, which were not recognized in the proposed rule. In
the final rule, the interim dust-lead standard for risk assessments and
reevaluations is 40 g/sq.ft for interior floors (both hard and
carpeted) and 250 g/sq.ft for interior window sills. Risk
assessments and reevaluations do not have a standard for window
troughs. Standards for clearance and lead hazard screens are also
provided. Exterior floors, such as unenclosed porches, and patios, do
not have a standard; the floor standard applies to enclosed porches. A
complete discussion of dust-lead standards is provided below in Section
III.E.15.b of this preamble, ``Adequacy of Dust-Lead Standards.''
One commenter questioned the advisability of HUD specifying a dust
standard in the proposed rule for carpets, arguing that there is no
consensus about how to test for dust hazards in carpets or what level
of lead is dangerous. HUD agrees with the commenter that research on
this question is needed, and it initiated such studies in 1997. It is
known, however, that carpeting can be a dust reservoir with significant
amounts of lead (Battelle 1997). The Department believes that it would
be wrong to do nothing to protect children in this situation. The
[[Page 50179]]
effect of failing to provide a standard for carpeted floors would mean
that the children who happen to be living in homes that are covered by
the rule and have wall-to-wall carpeting would remain unprotected from
floor dust-lead hazards, and the children living with area rugs would
be only partially protected. Preliminary data from the HUD Evaluation
of the Lead-Based Paint Hazard Control Grant program indicate that
about 25-30 percent of the bedrooms and living rooms in the study had
carpeting, with the percentage much higher in certain areas.
HUD acknowledges that the proposed EPA rule implementing TSCA
section 403 did not include a dust-lead standard for carpets because
EPA felt that currently available data are insufficient for
establishing a health-based standard and because it is not clear what
hazard reduction methods are effective. EPA acknowledged that ``the
lack of a standard for carpeted floors is a significant limitation''
and requested comment on the impact of not having a standard and on
information that would be helpful in setting such a standard.
As explained below under ``Adequacy of Dust-Lead Standards,'' a
study by the University of Rochester (Lanphear 1996) shows a
significant correlation between dust lead in carpets and children's
blood lead. Furthermore, HUD provides in subpart R of the rule a method
for dust-lead hazard control in carpets or rugs. This method relies on
thorough vacuuming and is based on the HUD Guidelines and on recent
data from the Evaluation of the HUD Lead-Based Paint Hazard Control
Grant program. The feasibility of removing dust lead from carpets to
achieve the interim standard is discussed below in Section III.E.15.b.
of this preamble. Therefore, HUD is including in the final rule an
interim standard for dust lead in carpeting using a wipe sampling
method, pending the issuance by EPA of a health-based standard pursuant
to TSCA section 433.
The HUD interim standard for clearance in the final rule is the
same as for risk assessments on floors and interior window sills, but a
clearance standard of 800 g/sq.ft is added for window troughs.
The Department's intent in setting a clearance standard for window
troughs is to encourage their cleaning. It is not unusual for window
troughs to have very high loadings of lead in dust, perhaps because
they are perceived as an exterior surface and are rarely cleaned, and
perhaps because lead-based paint on window friction surfaces
contributes to the dust lead loading in the trough. In the evaluation
of HUD's Lead-Based Paint Hazard Control Grant Program, the median pre-
intervention dust-lead loading on troughs for occupied dwelling units
was over 11,500 g/sq.ft, and 10 percent of the units had
loadings over 100,000 g/sq.ft. Comments were both for and
against sampling troughs. A large city housing agency agreed with the
policy on troughs in the proposed rule. A State agency disagreed,
pointing out that, in the Rochester study of the relationship between
dust lead and childhood blood lead, dust lead in troughs correlated
well with blood lead.
In the final rule HUD has included an option to conduct a lead
hazard screen, and, as in the HUD Guidelines, the dust-lead standard is
set at approximately one-half the risk assessment standard: 25
g/sq.ft. for floors and 125 g/sq.ft. for interior
window sills. The floor standard for the lead hazard screen was set at
25 g/sq.ft. instead of 20, reflecting practical laboratory
detection limits.
Several commenters addressed aspects of the proposed rule's
treatment of soil-lead standards or soil treatments. EPA questioned
HUD's interpretation of the soil-lead levels in EPA's guidance on lead
in soil (60 FR 47248, September 11, 1995). In its guidance, EPA
recommended that when lead levels in bare soil exceed 400 ppm at
``areas expected or intended to be used by children,'' interim controls
be undertaken to change use patterns and/or create barriers between
children and contaminated soil. ``Where bare soil-lead levels are found
to be 2,000 ppm or more, interim controls should be implemented even if
the area is not frequented by children.'' At 5,000 ppm or more, EPA
recommended abatement of bare soil. In the proposed rule, HUD applied
the 400 ppm standard to bare soil ``in play areas;'' the 2,000 ppm
standard was applied to bare soil in ``other areas.'' EPA called this
interpretation incorrect, indicating that permitting 2000 ppm levels
anywhere near areas occupied by children ``may present an unreasonable
risk.'' The Agency recommended that the 400 ppm standard apply to the
entire yard. HUD believes that its interpretation of the guidance is
reasonable and also that it reflects the guidance on this matter given
in the HUD Guidelines, which is referenced in the EPA regulation. In
the final rule, HUD has retained, therefore, the same interpretation as
in the proposed rule. The standard for soil-lead hazards addresses bare
soil in play areas frequented by children under 6 years of age. HUD
intends that these play areas include those intended for these
children's routine use, as demonstrated by such evidence as the
presence of play equipment or similar attractions, collections of toys
or other children's possessions, or observations of children's play
patterns.
EPA questioned the basis for the proposed rule standard of no more
than 200 g/g for material used to cover soil-lead hazards.
While conclusive scientific data on which to base the standard are not
available, HUD believes that a standard is needed and that making it
one-half of the level considered to be a soil-lead hazard in children's
play areas is reasonable.
Throughout the rule, units of measurement are provided in metric
forms as well as corresponding conventional unit values, in accordance
with the Metric Conversion Act of 1975, as amended by Public Law 100-
418, at 15 U.S.C. 205b; and Executive Order 12770, ``Metric Usage in
Federal Government Programs'' (56 FR 35801, July 25, 1991). Persons
covered by the rule should consistently apply the units they use
routinely in their work. For example, lead-based paint professionals
who use conventional units (such as feet) in their work should use the
risk assessment standards of micrograms per square foot (g/ft
\2\); professionals who use metric units (such as meters) in their work
should use the fully metric standards of micrograms per square meter
(g/m \2\).
HUD is aware of efforts by voluntary consensus standards bodies to
develop private-sector standards in the lead-based paint hazard
evaluation, management and control areas, and on related subjects. HUD
has been supportive of, and participated in, some of these efforts. For
example, over a dozen standards of the American Society for Testing and
Materials (ASTM, West Conshohocken, PA 19428-2392) are cited in the HUD
Guidelines. The Guidelines, in turn, are cited by subpart R itself and
in the EPA rule on lead hazard control work practices (40 CFR
745.227(a)(3)), which is cited by subpart R. ASTM and other committees
are continuing to develop standards in the lead-based paint hazard
field (such as occupant notices with more detail). The Department will
review these standards, when issued, for their applicability to and
practicality for the programs covered by this rule.
b. Adequacy of Dust-Lead Standards. One commenter stated that the
permissible levels of lead in dust referenced in the proposed rule
would not be sufficiently protective of children and cited several
recent scientific studies as evidence. Other commenters stated that HUD
failed to require clearance testing in all programs to determine if
housing units undergoing lead hazard reduction activities were
[[Page 50180]]
safe to reoccupy. The proposed rule contained standards for lead in
dust of 100 g/ft2 on floors and 500 g/
ft2 on window sills for both risk assessment and clearance
purposes. The proposed rule eliminated an earlier standard of 800
g/ft2 for window troughs. In preparing the final
rule, HUD considered the health benefits and feasibility of lead dust
standards for both clearance and risk assessment purposes.
(1) Health Benefits. Clark and coworkers reported a study of 23
homes in Cincinnati where the floor dust-lead level required to prevent
95% of the children from exceeding a blood lead level of 10 g/
dL was found to be almost an order of magnitude lower than the existing
standard of 100 g/ft \2\ (Clark 1996). In a study of 205
children in Rochester, NY, Lanphear et al. found that approximately 20%
of children exposed to a floor dust-lead level of 40 g/ft \2\
had blood lead levels greater than 10 g/dL (Lanphear 1996).
Earlier studies have demonstrated the importance of establishing
adequate dust-lead standards. From data collected in 1990, Ashengrau
reported an increase in blood lead level of 6.5 g/dL (p=0.05)
in children who had baseline blood lead levels below 20 g/dL
and whose houses were treated for lead-based paint hazards using a
floor clearance standard of 200 g/ft2 (Ashengrau
1997). These houses were also treated mainly through extensive dry
scraping, which under this rule is now a prohibited method of paint
removal in federally-assisted or federally-owned housing.
In a study conducted between 1987 and 1990 where clearance testing
may not have been conducted at all and where children had baseline
blood lead levels less than 20 g/dL, only 35% of the children
had lower blood lead levels following hazard control work. The mean
blood lead level increased significantly from 16.8 g/dL to
19.3 g/dL (p<0.05) (swindell="" 1990).="" these="" studies="" demonstrate="" that="" without="" clearance="" testing="" and="" without="" adequate="" dust-lead="" standards,="" children's="" blood="" lead="" levels="" may="" worsen="" as="" a="" result="" of="" lead-based="" paint="" hazard="" control="" work="" in="" housing.="" therefore,="" hud="" has="" provided="" for="" clearance="" testing="" when="" lead="" hazard="" control="" work="" is="" done="" in="" housing="" covered="" by="" this="" rule.="" although="" each="" of="" the="" studies="" cited="" above="" have="" limitations,="" it="" is="" clear="" that="" the="" weight="" of="" the="" scientific="" evidence="" suggests="" that="" children="" may="" not="" be="" adequately="" protected="" under="" the="" dust-lead="" standards="" in="" hud's="" proposed="" rule.="" as="" a="" result="" of="" such="" studies,="" hud="" has="" progressively="" lowered="" its="" dust-lead="" standard="" over="" the="" years.="" in="" 1990,="" hud="" used="" a="" floor="" dust-lead="" standard="" of="" 200="">g/ft2 in its
Interim Guidelines, based primarily on a standard adopted by the State
of Maryland and research conducted at Johns Hopkins University (Farfel
1990).
At that time, the Centers for Disease Control and Prevention (CDC)
had established a blood lead level of concern of 25 g/dL. In
1991, CDC adopted a new multi-tier blood lead level response system.
That system indicated that blood lead levels of 10-14 g/dL in
many children in a community should trigger community-wide childhood
lead poisoning prevention activities. A blood lead level of 15-19
g/dL that persists in an individual child should result in an
environmental investigation and intervention. Higher blood lead levels
require more intensive medical evaluation and pharmacologic treatment.
Because CDC lowered the blood lead level of concern, it is logical that
dust-lead standards would also need to be reduced. Consequently, HUD
reduced its floor dust-lead standard to 100 g/ft2
in its 1994 draft Guidelines, which was released in final form in 1995.
EPA adopted the same guidance dust-lead level in 1994 and published it
the next year (60 FR 47248, September 11, 1995).
Dust-lead standards in this rule will be used in risk assessments
to determine whether hazard reduction should be conducted and in
clearance examinations to determine whether dust in housing units,
common areas and/or work sites has been properly cleaned and removed
after hazard reduction activities. The goal of these activities is to
protect children from exposure to lead at or above the CDC level of
concern, 10 g/dL. As explained below, HUD has considered both
cost and feasibility in setting the interim standards.
To better understand the existing science, HUD conducted a study
pooling the data from virtually all available epidemiological studies
that examined the relationship between dust-lead and blood-lead levels,
taking into account differences across the studies (Lanphear et al.
1998). After combining data sets from each study, a cohort of 1,861
children aged 6 to 36 months was created. This age group has been found
to have the clearest relationship between dust lead and blood lead. The
pooled analysis excluded children who had been individually selected
for study on the basis of high blood lead, due to the bias this could
introduce. Environmental lead measurements and other variables (season,
presence of industrial sources of exposure, year of study, race, sex,
socioeconomic status and measurement error) were standardized across
all studies.
The pooled analysis of epidemiological studies estimated the
expected prevalence rate of blood lead levels greater than or equal to
10 and 15 g/dL in young children using a number of different
candidate dust-lead standards and holding all other environmental
variables and other covariates at their national averages. Table 1
shows the results of this analysis.
Table 1.--Floor Dust Lead and Children's Blood Lead Levels
------------------------------------------------------------------------
Percentage of Percentage of
children with children with
blood lead blood lead
Floor dust-lead loading (g/ levels greater levels greater
ft2) than or Equal to than or equal to
10 g/dL 15 g/dL
(95% confidence (95% confidence
intervals) intervals)
------------------------------------------------------------------------
1................................... 1.0 (0.3-3.8) 0.1 (0.0-0.6)
5................................... 4.4 (1.7-11.0) 0.7 (0.4-2.6)
10.................................. 7.4 (3.1-16.5) 1.4 (0.4-4.6)
20.................................. 12 (5-24) 2.7 (0.9-7.8)
25.................................. 14 (6-27) 3.2 (1-9)
40.................................. 18 (9-33) 4.7 (2-13)
70.................................. 24 (12-42) 7.2 (3-18)
[[Page 50181]]
100................................. 28 (14-48) 9.3 (4-23)
------------------------------------------------------------------------
The pooled analysis indicates that, using the old standard (i.e.,
100 g/sq.ft. on floors), 28 percent of young children may have
a blood lead level greater than or equal to 10 g/dL, and
nearly 10 percent may have a blood lead level equal to or greater than
15 g/dL. Using a floor dust-lead standard of 40 g/
sq.ft., 18 percent of young children may have a blood level of 10
g/dL or greater, and less than 5 percent will be a 15
g/dL or greater. To achieve a prevalence of only 5 percent of
young children with blood levels at 10 g/dL or greater, the
analysis indicates that dust-lead loadings on floors would have to be
at 5 g/sq.ft.
For reasons of feasibility, HUD is setting an interim dust-lead
standard for floors of 40 g/sq.ft. The feasibility issues are
discussed in the following paragraphs. It is noteworthy that, based on
Table 1, a standard of 40 g/sq.ft. is expected to protect more
than 95 percent of young children against exposure to lead in blood
equal to or greater than 15 g/dL, which is the level
recommended by CDC at which environmental intervention should be
conducted. This is also the environmental intervention blood lead level
used in this rule, as explained above in Section III.D.6 of this
preamble.
With regard to carpeted floors, Lanphear et al. found a significant
correlation between dust lead in carpets (using wipe sampling) and
children's blood lead levels (Lanphear 1996). Furthermore, the study
showed that about 19.8 percent of children would have blood lead levels
at or above 10 g/dL with carpeted floors at 40 g/
sq.ft., a percentage that is not significantly different from the 18
percent found with hard-floor dust lead at 40 g/sq.ft.
Therefore HUD is setting an interim dust lead standard for carpeted
floors that is the same as that for hard floors.
(2) Feasibility. There are two issues that affect the feasibility
and cost of any given dust-lead standard: (1) The ability of cleaning
techniques to meet a given level of cleanliness and the percentage of
houses that can be expected to pass and maintain a given dust-lead
standard; and (2) the ability to measure dust-lead levels in the range
of interest using readily available analytical techniques (and the
increased cost of using more sensitive detection methods if needed).
The largest study of residential lead hazard control conducted to
date is HUD's on-going evaluation of its first 14 grantees under the
Lead-Based Paint Hazard Control Grant program. These grantees are State
and local governments receiving grants to address lead-based paint
hazards in low-income, privately owned dwelling units. Almost 3,000
dwelling units are enrolled in this evaluation. Using modern hazard
control techniques, this study provides important insights into the
degree of cleanliness that is feasible using current measurement,
cleaning and hazard reduction technologies. The final report will not
be issued until after the year 2000 due to on-going evaluation of the
dwellings and the children who live in them.
Interim results show that, on average, initial floor dust-lead
levels are below 20 g/ft2 (National Center 1998).
Furthermore, the data show that dust-lead levels on floors do not
reaccumulate continuously, as assumed in the Economic Analysis for the
proposed rule, which was prepared before these reaccumulation data were
available. The new data show that median dust-lead levels on floors
continue to drop for at least the first year following the hazard
control work, from 19 g/ft2 to 14 g/
ft2 twelve months later. The average dwelling unit
undergoing lead hazard control had a median floor dust-lead level of 17
g/ft2 immediately following hazard control work.
That level declined to 14 g/ft\2\ six months later and
remained at the same level one year following the work. Therefore, it
is feasible to reach and maintain a floor dust-lead standard of 40
g/ft2.
The pooled epidemiological analysis also shows that a floor dust-
lead standard of 5 g/ft2 would be required to
ensure that 95 percent of children do not have a blood lead level
greater than or equal to 10 g/dL. However, modern hazard
reduction techniques do not appear to be capable of reaching a floor
dust-lead level of 5 g/ft2 routinely, since the
median level following hazard control work is three to four times
greater (see also the discussion below about detection limits).
Importantly, many of the units treated under the HUD lead hazard
control grant program are high-risk houses and often initially contain
children with seriously elevated blood lead levels. In more typical
dwelling units, it is likely that even lower dust-lead levels can be
achieved. Indeed, HUD's 1990 National Survey of Lead-Based Paint
Hazards in Private Housing found that the average dust-lead loading on
floors (converted to wipe sampling) was estimated to be only 5
g/ft2. This survey did not include houses where
lead hazard reduction had occurred.
The HUD Evaluation Study data show that 17.4 percent of these high
risk houses have floor dust-lead levels above 100 g/
ft2 (the existing standard). A dust-lead standard of 40
g/ft2 would increase the percentage of ``high
risk'' houses above the standard to about 26 percent. This is fairly
consistent with the blood lead levels found in this population, because
28.9% of the children enrolled had environmental intervention blood
lead levels.
More typical houses that are served by other HUD programs are
likely to have a far lower percentage failing the reduced dust-lead
interim standard, because these programs do not target housing with
lead-poisoned children. For example, data from HUD's National Survey
show that the percentage of all U.S. housing exceeding a floor dust-
lead level of 100 g/ft2 is 7.6 percent in ``dry''
rooms (i.e., rooms without plumbing fixtures). The percentage exceeding
a floor dust-lead level of 40 g/ft2 is 10.2 percent
in dry rooms. In short, the lower floor dust-lead interim standard of
40 g/ft2 will increase the percentage of houses
requiring hazard control by a modest 2.6 percent.
With regard to carpeted floors, preliminary data from the HUD
Evaluation indicate that only 15 percent of carpeted entry areas and 8
percent of
[[Page 50182]]
other carpeted rooms had dust-lead loadings equal to or greater than 40
g/sq.ft. based on wipe sampling. The Evaluation data also
indicate that grantees were able to reduce dust-lead loadings in
carpets, but the data are limited by the fact that grantees were
working with a clearance standard of 100 g/sq.ft. instead of
40 g/sq.ft.
(3) Detection Limits. Detection limits of dust wipe analysis also
have an effect on the feasibility of lower dust-lead standards. A
standard cannot be set at a level that cannot be measured reliably.
Many analytical laboratories currently report method detection limits
of 25 g/wipe. For floors, this means a method detection limit
of 25 g/ft2, since a one square foot area is
typically sampled. A method detection limit at least 4 times lower than
the regulatory standard is desirable to ensure reliable results.
For all laboratories in the HUD Evaluation Study, the average
method detection limit is currently 11 g/wipe. Therefore, HUD
believes that laboratories will be able to report detection limits of
10 g/wipe without having to resort to more sensitive and more
expensive types of analytical procedures. In short, no increase in
analytical cost is expected in order to achieve a detection limit of 10
g/wipe, which is one-fourth the new floor dust-lead standard
of 40 g/ft2. This will ensure that reliable
measures of dust-lead loading can be made.
A floor dust-lead standard of 5 g/ft2 is well
below method detection limits reported by most laboratories and is
therefore not feasible to implement.
(4) Window Dust Standards. For interior window sills and window
troughs, epidemiological data are less available than for floors,
because only a few studies have collected samples from these areas. For
interior window sills, the final rule establishes a dust-lead standard
of 250 g/ft2, which is based on a study in
Rochester, NY (Lanphear 1996). This standard also should protect
virtually all children from developing an environmental intervention
blood lead level. In the high risk houses enrolled in the HUD
Evaluation Study, 47.5 percent of the units had baseline window sill
dust lead levels below 250 g/ft2, which is close to
the percentage of children who had blood lead levels below 10
g/dL in the evaluation (54.3 percent). At clearance following
lead hazard control work, the median dust-lead level on window sills
was 44 g/ft2 at the time of clearance, 83
g/ft2 six months later, and 88 g/
ft2 12 months later. For more typical houses, the HUD
National Survey found that the percentage of interior window sills
failing a new dust-lead standard of 250 g/ft2 would
increase by a modest 5.4 percent (compared to the current standard of
500 g/ft2).
In short, the window sill standard is both feasible and health-
based. It is feasible because dust-lead levels at the new interim
standard can be reached and maintained and because the increase in the
percentage of houses failing the new standard is small. It is health-
based because the percentage of houses failing the standard is about
the same as the percentage of children with blood lead levels greater
than 10 g/dL in the HUD Evaluation Study.
In the proposed rule, HUD did not include the window trough
standard of 800 g/ft2 it had established in the HUD
Guidelines and the 1990 Interim Guidelines. However, several commenters
indicated that a window trough standard should be retained for
clearance purposes, as a way of ensuring that window troughs are
cleaned and/or treated during hazard reduction work. The HUD Evaluation
Study shows that median dust-lead levels in window troughs immediately
following hazard reduction work is 72 g/ft2,
indicating that it is feasible to implement a window trough clearance
standard of 800 g/ft2.
On the other hand, development of a feasible window trough risk
assessment standard is more problematic, because nearly all pre-1978
dwellings have very high window trough dust-lead levels. For example,
data from HUD's Evaluation Study indicate that the median window trough
dust-lead level for occupied dwelling units prior to hazard control
work is more than 11,500 g/ft2. Because HUD
believes it is important to have a reliable way to determine whether or
not window troughs were cleaned during hazard reduction work, and
because window trough lead dust does appear to contribute to children's
exposure, HUD has reestablished a window trough clearance standard of
800 g/ft2 in the final rule. Because most dwelling
units have window trough levels above 800 g/ft2,
HUD believes it is not feasible to establish a window trough dust-lead
standard for risk assessment and reevaluation purposes at this time.
Therefore, the window trough dust standard of 800 g/
ft2 is used for clearance purposes only. To meet this
clearance requirement, window troughs should be cleaned as a routine
part of all lead hazard control work.
(5) Lead Hazard Screen Standards. The lead hazard screen levels for
floor and interior window sill dust lead in this rule are 25
g/ft2 and 125 g/ft2,
respectively. These are about half of the standards used for risk
assessment purposes. This ensures that the screen will be sufficiently
sensitive to uncover those houses that should have a full risk
assessment.
Lead hazard screens are a form of risk assessment applied to
housing in good condition where lead-based paint hazards are unlikely
to be present. The protocol for a lead hazard screen referenced in the
HUD Guidelines involves (among other things) collection of two
composite dust samples: one from floors and a second from window
troughs. Each composite sample consists of 4 individual samples
collected from a like surface. If a level found in the screen is more
than one half of the applicable risk assessment dust-lead standard,
then a full risk assessment is to be conducted to determine if lead-
based paint hazards are actually present.
In this final regulation, HUD has modified slightly the lead hazard
screen protocol of the HUD Guidelines regarding dust. In the final
rule, interior window sills are sampled instead of window troughs for
three reasons: (1) Interior window sills are easier to wipe-sample than
troughs; (2) dust-lead loadings on troughs may reflect exterior sources
not related to the residential structure itself; and (3) dust-wipe
loadings on sills and troughs are highly correlated (the correlation
coefficient of the logarithms of the loadings is 0.60, which is higher
than that for any other pairs of paint- or dust-lead measurements
(Lanphear 1995)). EPA made a similar judgment in deciding not to
propose a window trough dust-lead hazard standard in the proposed
regulations pursuant to TSCA section 403 (63 FR 30335-6, June 3, 1998).
Future research or technological advances may result in different
recommendations, which the Department will review.
Similarly, HUD is noting that single-wipe samples may be used
instead of composite samples as part of the lead hazard screen. When
two or more single-wipe samples are used for a single building
component type (such as two or more interior widow sills), the dust
loadings for that component type are averaged to give the equivalent
composite sample result. Users may wish to take single-wipe samples,
rather than composite samples, as part of lead hazard screens for
several reasons: the cost of laboratory analyses is low enough for many
users that they may perceive little economic benefit to analyzing
composite samples instead of single-wipe samples, and the EPA's
National Lead Laboratory Accreditation Program (NLLAP) does not, at the
time of issuance of this rule, have a formal
[[Page 50183]]
quality assurance program for composite dust samples. EPA is working on
this latter issue, and will advise NLLAP participants and others if and
when such a program becomes available. Potential users of composite
dust wipe analyses may contact the National Lead Information Center
Clearinghouse toll-free at 1-800-424-LEAD for information on this
subject.
If less than 125 g/ft2 (half of 250 g/
ft2) of lead dust is detected on the composite interior
window sill sample, and the composite floor sample shows that less than
25 g/ft2 is present, the screen shows that lead-
based paint hazards are not present. In this case, a full risk
assessment is not needed. Conversely, if a lead hazard screen shows
that dust-lead is present at a level equal to or greater than 125
g/ft2 on interior window sills or equal to or
greater than 25 g/ft2 on floors, a lead-based paint
hazard may be present and a full risk assessment should be conducted to
confirm or reject the results of the screen.
HUD has also modified slightly the lead hazard screen protocol of
the HUD Guidelines regarding soil. In the final rule, soil is to be
sampled and analyzed, and the analyses evaluated, using the same
protocol as for a risk assessment. With analytical costs having dropped
since the publication of the HUD Guidelines, the cost of performing
soil analyses as part of lead hazard screens for single family housing
in good condition undergoing rehabilitation above $5,000 per unit (the
cases where the lead hazard screens are likely to be used) has become
insignificant; the additional time associated with the samples, for
lead professionals already at the site, is also insignificant.
To summarize, the final rule establishes the dust-lead standards in
Table 2. The dust-lead standards in this rule are interim standards
until EPA promulgates and makes effective dust-lead hazard standards
under TSCA section 403. When the TSCA 403 rule is effective, HUD will
issue any technical amendments that are needed to make clear what
standards are applicable to this rule at that time.
Table 2.--Interim Dust-Lead Standards
----------------------------------------------------------------------------------------------------------------
Surface
--------------------------------------------------------------------
Interior
Evaluation method Floors (g/ft2) (g/ Window troughs (g/ft2)
ft2)
----------------------------------------------------------------------------------------------------------------
Risk Assessment Screen..................... 25 125 Not Applicable.
Risk Assessment............................ 40 250 Not Applicable.
Reevaluation............................... 40 250 Not Applicable.
Clearance.................................. 40 250 800.
----------------------------------------------------------------------------------------------------------------
Note: ``Floors'' includes carpeted and uncarpeted interior floors.
c. Summary Notice Formats. Subparts D, and F through M of the final
rule require that occupants be notified of the results of evaluations
and hazard reduction activities (including clearance examinations).
Also, if lead-based paint or lead-based paint hazards are presumed to
exist, notification must be made. The major elements of these notices
are described in Subpart B.
Subpart B places responsibility for any required occupant
notification on the designated party. HUD recognizes that many
designated parties may not have the expertise from staff or consultants
to extract the pertinent information from the inspection, risk
assessment or clearance reports to prepare the notices. As a result,
the Department, in subpart R, makes a strong recommendation that the
lead-based paint professional who prepares such a report provide the
designated party with the summary notice of the results suitable for
posting or distribution to occupants.
Sample (i.e., non-mandatory) notice formats that can be used are
provided in Appendix A for a lead-based paint inspection, Appendix B
for a risk assessment, Appendix C for presumption of the presence of
lead-based paint or lead-based paint hazards, and Appendix D for
completion of hazard reduction activities (including clearance). These
formats include the information described in Subpart B and are based
on: (1) The sample formats developed by HUD and EPA for the disclosure
rule (see 61 FR 9074-5, March 6, 1998, in the preamble to the final
rules implementing section 1018 of Title X, 24 CFR 35.80-98 and 40 CFR
745.100-119); and (2) formats developed by the California Department of
Health Services (Emeryville, CA 94608-1939) for notices of abatement of
lead hazards (DHS form 8551) and lead hazard evaluation (DHS form
8552).
Requirements for reports of evaluation or abatement clearance used
to develop the corresponding notices to occupants are found in EPA's
TSCA section 402/404 rule (40 CFR 745.227) and are cited by subpart R.
Requirements for reports on hazard reduction activities other than
abatement are in subpart R itself. Guidance on preparing these reports
is found in the HUD Guidelines, chapters 5 (risk assessment), 7
(inspection), and 15 (clearance). There are currently no detailed
standards for preparing these reports, and HUD-funded research on lead-
based paint inspection reports has found considerable variability in
them, in both format and measures of completeness and accuracy (HUD
1998). ASTM committee work developing detailed voluntary consensus
standard protocols for report preparation is beginning; HUD will
evaluate any standards, when issued, for their applicability to, and
practicality for, the programs covered by this rule.
d. Interim Controls. The section on interim controls in the final
rule is similar to that of the proposed rule. As mentioned above in
Section III.D.8 of this preamble, the proposed rule required that
workers performing interim controls be supervised by a certified
abatement supervisor, and this was met with criticism by several
commenters. In response to these comments, in the final rule HUD is
following the Task Force recommendation that such workers be trained in
the basic requirements of safe lead-based paint hazard reduction, and
several choices of acceptable training courses are mentioned. All such
training is designed to meet OSHA requirements; several choices meet
EPA requirements as well.
Another significant modification of the proposed-rule section on
interim controls is the addition of explicit factors that must be
present for interim controls to be required under this rule for
friction, impact and chewable surfaces. HUD developed these factors in
response to comments that greater specificity is needed to prevent
unnecessary, ineffective and wasteful hazard reduction actions.
Friction
[[Page 50184]]
surfaces are required to be treated only if: (1) Dust-lead levels on
the nearest horizontal surface (i.e., the surface on which the dust
settles that is nearest to the friction surface) are greater than the
risk assessment dust-lead standards; (2) there is evidence that the
surface is subject to abrasion; and (3) lead-based paint is known or
presumed to be present on the surface. Impact surfaces are required to
be treated only if: (1) Paint on the surface is damaged; (2) the
damaged paint is caused by impact from a related building component
(such as a door knob that knocks into a wall, or a door that knocks
against its door frame); and (3) lead-based paint is known or presumed
to be present on the surface. HUD intends that impact as a result of
misuse by occupants is not necessarily an acceptable basis for
requiring treatment. Chewable surfaces are required to be treated only
if: (1) There is evidence that a child of less than 6 years of age has
chewed on the surface; and (2) lead-based paint is known or presumed to
be present on the surface.
As in the proposed rule, interim control methods, when required,
must be selected from among those identified as acceptable in a current
risk assessment report. (As noted in subpart B, abatement is also
acceptable when interim controls are required.) When interim controls
are required and no risk assessment has been done or no risk assessment
that has been done is current, a new risk assessment must be conducted
(except when only paint stabilization of deteriorated paint is
required, because the response has been specified in the rule).
Techniques for repairing physical defects in a substrate before
performing paint stabilization are discussed in the HUD Guidelines,
chapter 11.
The proposed rule required a minimum two-stage cleaning process for
the control of dust-lead hazards on hard surfaces: first HEPA
vacuuming, then wet cleaning. Also, HEPA vacuuming was required for
surfaces covered by carpeting or rugs. One commenter noted that recent
research has indicated that a variety of cleaning methods may achieve
clearance levels, and that one of the critical variables affecting the
difficulty of cleaning is the condition of the surface. To avoid
rigidity, HUD has modified the dust-lead hazard control requirements in
the interim controls section of subpart R of the final rule in three
ways. First, the two-stage process is no longer required; second, if
hard surfaces are rough and pitted, they must be made smooth and
cleanable; and third, rather than requiring HEPA vacuuming, HUD is
requiring the use of a ``HEPA vacuum or other method of equivalent
efficacy.'' One of the main reasons for revision of required cleaning
methods is that the final rule requires clearance after all hazard
reduction activities, whereas the proposed rule omitted the clearance
requirement for some housing programs. In the context of this rule, the
goal of cleaning should be to achieve clearance, not to comply with
prescriptive regulations on how to clean. Making surfaces smooth and
cleanable is an important objective, because it makes it possible for
occupants to maintain their dwellings safe from dust-lead hazards in
the future. Revision of the HEPA filter requirement will facilitate the
application of advances in technology resulting from ongoing research
on cleaning lead-contaminated surfaces. Information on the status of
this field of technology is provided in Section III.E.2.a of this
preamble, in the discussion of HEPA vacuums.
A commenter recommended that clearance not be required after
``basic interim controls,'' because many interim controls are like
routine maintenance activities that will be performed frequently by in-
house staff. In the final rule, the Department has retained the
clearance requirement for initial interim controls, because clearance
is the only method of determining whether a dwelling unit is free of
lead-based paint hazards. HUD, however, is not requiring clearance
after ongoing lead-based paint maintenance activities that are
conducted after interim controls and that do not disturb painted
surfaces of a total area greater than 20 square feet on exterior
surfaces, 2 square feet in any one interior room or space, or 10
percent of the total surface area on an interior or exterior component
with a small surface area such as window sills, baseboards and other
trim.
e. Standard Treatments. As explained above in Section III.E.2.c of
this preamble, standard treatments, when used, must include: (1)
Stabilization of all deteriorated paint, interior and exterior; (2) the
provision of smooth and cleanable horizontal hard surfaces; (3) the
correction of dust-generating conditions (i.e., conditions causing
rubbing, binding, or crushing of surfaces known or presumed to be
coated with lead-based paint); and (4) treatment of bare soil to
control known or presumed soil-lead hazards. Safe work practices and
clearance are required. Individuals performing standard treatments must
be trained in how to control lead-based paint hazards. The training
requirement is identical to that for interim controls.
f. Clearance. Methods and standards for clearance in this rule
refer to the EPA requirements for clearance after abatement at 40 CFR
745.227(e) but also specify the dust-lead loading levels to be used for
clearance. To pass clearance, dust-lead levels, using wipe sampling,
must be less than 40 g/ft2 for interior floors, 250
g/ft2 for interior window sills, and 800
g/ft2 for window troughs. The rule also specifies
the content of clearance reports that must be prepared for clearances
after hazard reduction activities other than abatement. For clearance
of the worksite only, which is required in subpart J after
rehabilitation receiving no more than $5,000 per unit and also in some
ongoing maintenance activities, dust samples must be taken from the
floor and windows (if available) that represent the area within the
dust containment area of the worksite. Worksite clearance is not
required if the rehabilitation or maintenance does not disturb painted
surfaces totaling more than the safe work practices de minimis levels
(see Section III.D.4 of this preamble, above). For a discussion of
qualification requirements for persons performing clearance, see
Section III.D.8 of this preamble, above.
While subpart R allows recleaning immediately after a clearance
failure, owners, designated parties and contractors are urged to
consider the cause of the failure, and to address the cause, if
identified, before recleaning the affected area.
A commenter recommended that property owners (or other designated
parties) be allowed to retain a certified inspector or risk assessor to
perform the clearance examinations. In the final rule, HUD has allowed
this, provided the clearance examiner is independent from any
contractor used to perform the hazard reduction work. The property
owners (or other designated parties) may, however, use in-house
employees for both hazard reduction and clearance examination, provided
that the same employee does not do hazard reduction and clearance.
After clearance, a report is to be prepared that documents the
hazard reduction or maintenance activity as well as the results of the
clearance examination. It is the responsibility of the designated party
to ensure that this report is prepared, signed, and kept for at least
three years. For an abatement activity, the report is an abatement
report as described in EPA regulations at 40 CFR 745.227(e)(10). The
abatement report includes the results of the clearance examination as
well as a detailed written description of the abatement, and its
preparation is the responsibility of the abatement supervisor. For
another hazard reduction activity requiring a clearance
[[Page 50185]]
report (including interim controls, paint stabilization, standard
treatments, lead-based paint maintenance, or rehabilitation), the EPA
rule does not apply; so the final rule provides an outline of the
required report that parallels the EPA abatement report outline.
However, the designated party must make sure: (1) That a report
describing the hazard reduction activity is prepared; and (2) that the
clearance examiner provides a signed clearance report with the
information required by the rule.
Designated parties should also bear in mind that HUD has
requirements in subparts D, and F through M for occupant notification
following hazard reduction activities. The major elements of this
notice are described in Subpart B. A sample (i.e., non-mandatory)
format that can be used for notification of the completion of hazard
reduction activities, including clearance, is provided in Appendix D
(see discussion, above, in Section III.E.15.c of this preamble).
g. Occupant Protection and Worksite Preparation. Requirements for
occupant protection and worksite preparation in this final rule are
similar to those in the proposed rule, which were based largely on the
HUD Guidelines.
Many hazard reduction activities can be completed in one work
shift. As a result, the Department has streamlined the requirements for
occupant relocation for work that will be completed within one period
of 8 daytime hours. For work lasting longer, the rule provides for
either occupant relocation or, for work lasting up to five days,
occupancy of parts of the dwelling unit outside the worksite. The five-
day de minimis criterion is used in chapter 8 of the HUD Guidelines;
the regulation closely parallels, but streamlines the guidance in
tables 8.1, 8.2, and 8.3 of the Guidelines.
At rooms where hazard reduction activities are conducted when
occupants are present; or buildings from which occupants have been
relocated, a warning sign shall be posted at each entry. For exterior
hazard reduction activities, the sign placement is based on the HUD
Guidelines, chapter 8, but the rule is somewhat more flexible, in that
the position of the sign for exterior work is not specified beyond the
performance requirement of its being easily read at 20 feet (6 meters)
from the edge of the worksite. The wording of the sign is that of the
four-line warning sign in the OSHA lead in construction standard (29
CFR 1926.62(m)), ``WARNING / LEAD WORK AREA / POISON / NO SMOKING OR
EATING.'' The OSHA wording is used by HUD for interagency regulatory
consistency. Based on the approach used in subpart B for occupant
notification, the warning sign is to be provided in the occupants'
primary language or in the language of the occupants' lease or
contract.
h. Safe Work Practices. A section on safe work practices has been
added to this final rule to specify the practices to be observed during
paint stabilization, ongoing lead-based paint maintenance, and
rehabilitation receiving no more than $5,000 per unit in Federal
rehabilitation assistance. Safe work practices include occupant
protection and worksite preparation, specialized cleanup, and the
prohibition of certain methods of paint removal (see Section III.E.2.g
of this preamble, above). Safe work practices are not required if the
total area of paint surfaces being disturbed is no more than the de
minimis exemption levels of 20 square feet on exterior surfaces, or 2
square feet in any one interior room or space, or 10 percent of the
total surface area on an interior or exterior component with a small
surface area (such as window sills, baseboards, and other trim).
i. Ongoing Lead-Based Paint Maintenance and Reevaluation. The
proposed monitoring of housing after interim controls was the subject
of several comments. Commenters expressed doubts about the efficacy of
the proposed monitoring requirements, regarded them as expensive to
maintain and enforce, and questioned the ability of designated parties
to assure, into the future, that monitoring responsibilities assigned
to owners would be carried out. Monitoring, as proposed, consisted of a
visual survey by the owner at least annually, repair of any
deteriorated paint, and a professional reevaluation by a risk assessor
for the presence of lead-based paint on a schedule based on the hazards
found and the action taken.
In the final rule, the monitoring requirement has been changed in
several ways. The term, ``monitoring,'' is no longer used in the rule;
the visual assessment by the owner is now part of the ongoing
maintenance requirement, which has been patterned after the ``essential
maintenance practices'' recommended by the Task Force; and the
reevaluation schedule has been simplified so that all reevaluations are
on the same schedule. The new schedule calls for reevaluation at
intervals of two years, plus or minus 60 days. If two consecutive
reevaluations at two-year intervals find no lead-based paint hazards,
no further reevaluation is required. Similarly, if the initial risk
assessment found no lead-based paint hazards, no reevaluation is
required.
Ongoing lead-based paint maintenance is required in specified
situations in subparts F through M. This can involve such activities as
visual assessment, stabilizing deteriorated paint, standard treatments,
interim controls, repair of failed lead-based paint hazard controls,
and notifications of evaluation and hazard reduction activities.
(Sample formats and language requirements for notices are discussed
above in Sections III.E.15.c and g of this preamble, respectively.)
Reevaluation is required for housing receiving project-based
assistance greater than $5,000 per unit per year and for public
housing. The strategy for selecting portions of residential properties
to reevaluate considers two factors: How many dwelling units and common
areas are present, and at how many worksites hazard reduction
activities were performed previously. The selection and reevaluation
procedures for dwelling units and common areas are the same as for risk
assessment, as provided in subpart R, and as detailed in the HUD
Guidelines, chapter 5. Similar dwelling units are grouped, and the
number to be reevaluated in each such group is determined from tables
in the Guidelines.
For a targeted sample of units with the highest likelihood for
finding lead-based paint hazards, there is a table in chapter 5; for a
random sample of units, chapter 5 refers users to a table in chapter 7.
Separately, the number of worksites of previous hazard reduction
activities to be reevaluated is determined using the same procedure as
for selecting the number of units. Specifically, worksites are grouped
on the basis of similarities of their original lead-based paint hazards
(e.g., similarities in the type of location, original condition and, as
applicable, building component type, of the lead-based paint hazards),
and types of hazard reduction activities performed on them. The number
of such similar worksites to be reevaluated is determined using the
tables in chapters 5 or 7, and worksites are selected. Reevaluations
are not to be duplicated in locations selected by both processes (that
is, selecting units and common areas, and selecting worksites).
When a risk assessor performing a reevaluation finds deteriorated
paint or deteriorated or failed interim controls, encapsulations or
enclosures, the designated party shall respond, selecting from among
the acceptable options for controlling the hazard identified in the
risk assessor's report of the reevaluation. When the risk assessor
reports newly-identified lead-based
[[Page 50186]]
paint hazards, the designated party shall treat each dust-lead hazard
by cleaning or hazard reduction measures, and each soil-lead hazard by
hazard reduction measures.
IV. Deletions of Current Regulations
Most of the regulatory changes in parts of title 24 other than part
35 consist, as noted in Section III.A.7 of this preamble, above, of
replacing explicit descriptions of lead-based paint requirements with
references to part 35. Retaining mention of lead-based paint in each
HUD program's part of title 24 maintains the visibility of the lead-
based paint requirements, and promotes compliance with requirements
under Title X and the Lead-Based Paint Poisoning Prevention Act.
Consolidating references in affected program parts will help program
managers, property owners and other users recognize that they can apply
the same procedures to the same situations, even if they arise under
different HUD programs. The consolidation also shortens these other
parts of title 24.
To aid users, the relevant program-oriented subpart of part 35 is
identified in the other parts of title 24, as is subpart A, the
Disclosure Rule. Each program-oriented subpart in part 35 describes and
cites applicable requirements elsewhere in that part.
References to Title X are added to the existing references to the
Lead-Based Poisoning Prevention Act, as bases for the regulations in
part 35. The terminology of Title X regarding evaluation and hazard
reduction replaces previous wording regarding inspection and abatement,
respectively, which were used in accordance with the earlier LPPPA.
For public housing, the regulations on liability insurance coverage
found at Sec. 965.215 fit better in their original location than they
would in part 35, and their substantive text remains in place. The
section has been modified, as described above for other sections, to
reflect Title X terminology and requirements.
V. Additional Public Comment
As noted earlier in this preamble, the rule will not take effect
for a period of one year. If in the review of this rule, there are
questions, concerns or other comments, HUD welcomes these questions,
concerns and comments. It is HUD's intention that the rule achieve the
objectives of the statute in the least burdensome manner. If there are
any serious inconsistencies or deficiencies in the rule, HUD will make
every effort to correct these before the rule takes effect. Comments
should be submitted to the Office of Lead Hazard Control, Department of
Housing and Urban Development, 451 Seventh Street, SW, Room P-3206,
Washington, DC 20410-0500.
VI. Regulatory Assessment
A. Economic Analysis
An Economic Analysis (EA) has been prepared that examines the costs
and benefits of this final rule. This document fulfills the
requirements of Executive Order 12866, which requires HUD to prepare an
EA for all significant rulemakings. A discussion of public comments on
the EA of the proposed rule is provided below in Section VI.A.6 of this
preamble.
1. Summary and Methodology of Cost-Benefit Analysis. HUD estimates
the costs associated with this rule to be $253.2 million for the first
year, and the benefits to be $1,143.3 million using a three percent
discount rate for increased lifetime earnings and $324.2 million using
a seven percent discount rate (see discussion of discount rates below).
The analysis in the EA reflects costs and benefits associated with the
first year of hazard evaluation and reduction activities in housing
units affected under the final rule. The estimated annual number of
HUD-assisted and HUD-owned units affected reflect an annual flow of
units under HUD programs (e.g., insurance and rehabilitation programs),
except in the case of project-based assistance and public housing, for
which the affected units are divided by the number of years allowed
under the final rule for completion of required activities. The costs
and benefits for each year's activities include the present value of
future costs and benefits associated with first year hazard reduction
activities. For example, the costs associated with first year
activities include the present value of future reevaluation costs.
Similarly, the benefits of first year activities include the present
value of lifetime earnings benefits for children living in or visiting
the affected unit during the first year, and for children living in or
visiting that unit during the second and subsequent years after hazard
reduction activities.
After the first year, the number of units for which initial hazard
evaluation and reduction must be done will decline significantly
because some large housing assistance programs, such as public housing
and project-based assistance, have a relatively stable stock and do not
experience a large annual inflow of new units. In these programs,
owners will need only to engage in ongoing maintenance and reevaluation
after initial hazard evaluation and reduction is completed. There is a
two-year phase-in of requirements in the public housing program and a
four-year phase-in for housing with project-based assistance of more
than $5,000 per unit per year. HUD estimates that the total number of
dwelling units newly covered by the rule will be approximately
1,289,000 in the first year, 513,000 in the second year, 341,000 in
years three and four, and 314,000 per year after the fourth year. The
estimated present value of costs associated with the first five years
of the rule is $564.2 million. Using a seven percent discount rate for
increased lifetime earnings, HUD estimates the present value of total
benefits associated with the first five years to be $715.6 million,
with net benefits for the same period at $151.4 million. Using a three
percent discount rate, total benefits over five years are $2.65
billion, and net benefits are $2.08 billion.
The primary monetized benefit of childhood lead poisoning
prevention is increased lifetime earnings associated with the higher
cognitive abilities of persons not lead poisoned as children. The
present value of lifetime earnings benefits is particularly sensitive
to discount rate assumptions in the analysis, because these benefits
reflect lifetime earnings many decades into the future. The EA presents
estimated benefits using two different discount rates for lifetime
earnings--three percent and seven percent. For all other benefit and
cost estimates, the EA uses only a seven percent rate. The analysis
assumes that preventing a one g/dL increase in a one-year old
child's blood lead level saves $2,367 in lifetime earnings discounted
at three percent, and $544 at seven percent.
While the Office of Management and Budget (OMB) specifies seven
percent as the appropriate discount rate for most regulatory analyses,
a special social rate of time preference is appropriate when conducting
intergenerational analysis. HUD believes that an intergenerational
discount rate is applicable to the final rule because the costs will be
borne by adult taxpayers, and lifetime earnings benefits will be
realized by the children and grandchildren of these adult taxpayers.
The analysis of this issue by the Environmental Protection Agency, in
the 1996 EA for the regulations implementing sections 402(a) and 404 of
the Toxic Substances Control Act, concluded that a three percent
discount rate best reflects the social rate of time preference for
annualized, non-capital costs and benefits.
An intermediate approach, not quantified in the EA, could have used
[[Page 50187]]
a real discount rate based on the long-term borrowing costs of the
Federal government. The seven percent rate used in most regulatory
analyses is intended to reflect OMB's estimate of the opportunity cost
of capital, based on the average real rates of return on private
investments. This rate is appropriate for most regulatory analyses
because most regulations impose costs on the private sector. The final
rule, however, imposes costs on federally assisted housing. Most of
these costs will be funded directly or indirectly by Federal
expenditures. If these expenditures increase the national debt, then
the real cost of that debt to future generations will compound at the
real long-term Federal rate. The Internal Revenue Service's Applicable
Federal Rate (AFR) measures the nominal cost of government borrowing
over obligations with different maturities. The long-term AFR adjusted
for the implicit price deflator results in real AFRs of approximately
four to five percent over recent years. Therefore, benefits could be
discounted at this real AFR rate (i.e., 4 to 5 percent).
By presenting results using both three and seven percent, HUD is
providing the broadest view of costs and benefits. Additional
information on the methodology and results of the cost-benefit analysis
is provided below.
The methodology used in this analysis to estimate annual costs and
benefits for the final rule is based on the following simple formulas:
Regulatory Costs = (dwelling unit cost) x (unit cost frequency) x
(number of affected units); and
Regulatory Benefits = (dwelling unit benefit) x (unit benefit
frequency) x (number of affected units).
The unit cost estimates reflect the average costs associated with
specific hazard evaluation and reduction activities in a single housing
unit.
The unit benefit estimates are the benefits achieved by conducting
hazard reduction activities in a single housing unit. Unit cost
frequencies reflect the extent of required hazard evaluation activities
under the final rule, and the occurrence frequencies of different lead-
based paint hazards that trigger hazard reduction requirements. Unit
benefit frequencies are also determined by the occurrence frequencies
of lead-based paint hazards, because benefits are realized by hazard
reduction activities. Frequencies are estimated by three periods of
construction: Pre-1940, 1940-1959, and 1960-1977. The affected units,
for regulatory costs and benefits, are federally assisted and federally
owned units affected by the final rule.
2. Regulatory Costs. The cost estimates used in the EA reflect the
estimated average cost per unit for LBP hazard evaluation and reduction
activities in single and multifamily units affected by the final rule.
In the case of rehabilitation programs, the regulatory cost estimates
for paint stabilization and LBP hazard abatement activities reflect
only the incremental costs of the final rule. For example, the unit
cost of stabilizing paint that would not otherwise have been repaired
is significantly greater than the incremental cost of safe work
practices and cleanup to reduce lead-based paint hazards in the course
of scheduled repainting. The full cost of lead-based paint hazard
abatement includes a variety of activities that are also associated
with housing rehabilitation activities. Therefore, housing
rehabilitation programs affected by the final rule incur only
incremental costs for paint stabilization and abatement.
Under non-rehabilitation programs, the full costs of paint
stabilization are recognized as regulatory costs, but these costs are
substantially offset by the market value of housing-related benefits
for paint stabilization. The EA assumes that the full market value of
paint stabilization is realized whenever paint stabilization is
required under the final rule. Therefore, the incremental costs of
paint stabilization (e.g., safe work practices) are the only costs of
these activities that are not offset by market value benefits.
Although the final rule only requires hazard abatement in
rehabilitation units receiving more than $25,000 of Federal assistance,
the EA anticipates that some units subject to interim control
requirements will find it economical to treat friction impact surfaces
in part by replacing old windows with new energy efficient (low-e)
windows. In such cases, the EA recognizes the market value of new
windows based on the present value of estimated fuel savings
(discounted at seven percent). It is possible, however, that the market
value estimates for painting and window replacement may overstate the
market benefits of the final rule. For example, the market value of
paint stabilization required for HUD-owned housing may not be fully
recovered when these repainted units are sold by HUD. Therefore, the
cost-benefit analysis for non-rehabilitation programs explicitly
separates the estimated market value benefits of the final rule from
the monetized health benefits of LBP hazard reduction to facilitate
recalculations of net benefits under alternative market value
assumptions. The EA details the basis for unit cost estimates and
associated market values and explains the available data on occurrence
frequencies and the number of housing units affected by the final rule.
3. Monetized Benefits. Although many benefits of lead-based paint
hazard reduction cannot be quantified or monetized, the EA does provide
monetized estimates of the benefits of preventing children from
developing elevated blood lead levels (EBLs). Such benefits include
avoiding the costs of special education and medical treatment for EBL
children, as well as increasing lifetime earnings associated with
higher IQs for children with lower blood lead levels. The monetized
benefit of increased lifetime earnings due to lower blood lead levels
accounts for 99 percent of all monetized health benefits of the rule.
The benefits quantified in this analysis reflect the benefits of
preventing EBLs in children rather than the benefits of lowering the
blood lead levels of children already affected by lead poisoning. As
shown in the analysis, the benefits associated with avoiding childhood
lead poisoning substantially exceed the benefits of reducing hazards
for children already affected by lead poisoning. The EA details the
basis for the health benefit estimates.
4. Monetized Net Benefits. The analysis of net benefits in the EA
reflects costs and benefits associated with the first year of hazard
evaluation and reduction activities under the final rule. These costs
and benefits, however, include the present value of future costs and
benefits associated with first year hazard reduction activities.
Tables 3a and 3b present net benefits or costs by housing program
at three percent and seven percent discount rates respectively for
increased lifetime earnings. All programs have a net benefit at three
percent. The following programs have a net cost at seven percent: HUD-
owned single family and multifamily housing, housing with project-based
assistance, single family housing receiving rehabilitation assistance
of more than $5,000 per unit, and housing receiving assistance for
acquisition, leasing, support services or operation. The specificity of
statutory requirements limits the Department's ability to devise
policies with net benefits for these programs at a seven percent
discount rate.
Table 3c presents a summary of the costs, benefits, and net
benefits of the first year activities under the final rule, using a
three percent and seven percent discount rate for lifetime earnings.
The total cost of first year hazard evaluation and reduction activities
is $253.2
[[Page 50188]]
million. The total benefit of first year activities is $1.14 billion
using a three percent discount rate, and $324 million using a seven
percent discount rate. Net benefits of first year activities are
therefore either $890 million or $71 million, depending on the discount
rate used. The EA details the costs and benefits of the final rule by
subpart of the rule and by period of construction.
The individual rows of Table 3c detail the components of hazard
evaluation and reduction costs and monetized hazard reduction benefits.
Although the components of hazard reduction costs and monetized
benefits are often identified by the same brief descriptors (e.g.,
paint stabilization, soil cover, dust cleanup) the cost components are
not directly comparable to the benefit components. For example, dust-
cleanup costs reflect only the costs of cleanup. Cleanup benefits,
however, reflect the assumption that low dust-lead levels have a
benefit duration of five years with paint stabilization and ten years
with lead-based paint hazard abatement.
The duration of dust removal benefits reflects the anticipated
benefits over five or ten years to a new population of young children,
associated with births and unit turnover. This estimated duration of
benefits could not be realized without the hazard reduction activities
of paint stabilization or abatement, friction/impact work, and soil
cover, to the extent required by the rule. The monetized benefits in
the table for paint stabilization and abatement reflect only the health
benefits of avoided paint chip ingestion. The cost of paint
stabilization includes the incremental cost for rehabilitation
programs, and the full cost for non-rehab programs. Paint stabilization
market value benefits reflect the estimated market value for non-
rehabilitation programs. Subtracting paint stabilization market value
benefits from paint stabilization costs yields the incremental cost of
all paint stabilization required under the rule.
Table 3a.--Net Benefit (Cost) by Program for First Year Activities
[Three percent discount rate for lifetime earnings]
----------------------------------------------------------------------------------------------------------------
Total for
Subparts Pre-1940 1940-1959 1960-1977 subpart
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing (E)....... $0 $0 $0 $0
HUD-Owned Single Family Housing (F)..... 804,349 (104,790) (267,451) 432,108
Multifamily Insured Housing (G)......... 3,712,523 2,981,836 0 6,694,360
Multifamily Housing With Project-Based 7,858,982 6,284,595 4,395,518 18,539,094
Assistance > 5K (Hm1)..................
Multifamily Housing With Project-Based 22,150,600 7,055,126 4,798,460 34,004,186
Assistance > 5K (Hm2)..................
Single Family Housing With Project-Based 5,359,054 1,570,456 848,160 7,777,670
Assistance (Hs)........................
HUD-Owned and Mortgagee-in-Possession 221,666 551,460 316,903 1,090,029
Multifamily Housing (I)................
Single Family Rehab <5k (j1s)...........="" 26,705,720="" 19,813,315="" 3,103,588="" 49,622,624="" single="" family="" rehab="" 5k-25k="" (j2s)........="" 40,365,551="" 29,115,276="" 4,186,525="" 73,667,352="" single="" family="" rehab="" 25k="" (j3s)...........="" 3,192,504="" 8,466,423="" 421,773="" 12,080,700="" multifamily="" rehab=""><5k (j1m).............="" 3,103,001="" 2,488,518="" 491,894="" 6,083,413="" multifamily="" rehab="" 5k-25k="" (j2m)..........="" 12,303,357="" 9,541,269="" 3,316,929="" 25,161,554="" multifamily="" rehab="">25K (J3m)............ 8,536,151 6,932,896 1,504,944 16,973,991
Single Family Acquisition, Leasing, 318,545 124,334 20,862 463,741
Operating, and Support (Ks)............
Multifamily Acquisition, Leasing, 608,761 146,925 47,221 802,907
Operating, and Support (Km)............
Multifamily Public Housing (Lm)......... 58,623,013 188,764,843 34,665,629 282,053,485
Single Family Public Housing (Ls)....... 13,930,634 44,625,006 7,001,718 65,557,359
Single Family Tenant-Based Rental 68,354,171 31,214,436 15,578,130 115,146,737
Assistance (Ms)........................
Multifamily Tenant-Based Rental 102,509,490 46,573,257 24,862,934 173,945,681
Assistance (Mm)........................
-----------------------------------------------------------------------
Total Net Benefit................... 378,658,072 406,145,182 105,293,738 890,096,991
----------------------------------------------------------------------------------------------------------------
Table 3b.Net Benefit (Cost) by Program for First Year Activities
[Seven percent discount rate for lifetime earnings]
----------------------------------------------------------------------------------------------------------------
Total for
Subparts Pre-1940 1940-1959 1960-1977 Subpart
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing (E)....... $0 $0 $0 $0
HUD-Owned Single Family Housing (F)..... (1,927,841) (689,268) (539,603) (3,156,712)
Multifamily Insured Housing (G)......... 246,690 176,627 0 423,317
Multifamily Housing With Project-Based 391,267 240,304 (3,053,108) (2,421,537)
Assistance > 5K (Hm1)..................
Multifamily Housing With Project-Based (2,093,138) (2,104,432) (5,644,938) (9,842,508)
Assistance < 5k="" (hm2)..................="" single="" family="" housing="" with="" project-based="" (1,667,495)="" (1,102,037)="" (3,184,370)="" (5,953,901)="" assistance="" (hs)........................="" hud-owned="" and="" mortgagee-in-possession="" (15,690)="" (40,308)="" (368,895)="" (424,892)="" multifamily="" housing="" (i)................="" single="" family="" rehab=""><5k (j1s)...........="" 3,659,065="" 2,291,784="" (2,361,222)="" 3,589,628="" single="" family="" rehab="" 5k-25k="" (j2s)........="" 332,951="" (564,095)="" (4,419,314)="" (4,650,458)="" single="" family="" rehab="">25K (J3s).......... (202,701) (259,968) (467,775) (930,445)
Multifamily Rehab <5k (j1m).............="" 506,967="" 370,441="" (153,853)="" 723,554="" multifamily="" rehab="" 5k-25k="" (j2m)..........="" 1,820,172="" 1,315,448="" (76,463)="" 3,059,158="" multifamily="" rehab="">25K (J3m)............ 1,191,958 963,529 (42,968) 2,112,520
Single Family Acquisition, Leasing, (99,117) (87,249) (78,325) (264,691)
Operating, and Support (Ks)............
Multifamily Acquisition, Leasing, (57,525) (43,825) (55,551) (156,902)
Operating, and Support (Km)............
Multifamily Public Housing (Lm)......... 8,942,287 27,902,848 (1,523,858) 35,321,277
Single Family Public Housing (Ls)....... 1,380,411 4,213,020 (2,151,524) 3,441,908
Single Family Tenant-Based Rental 11,717,061 4,619,772 1,484,946 17,821,779
Assistance (Ms)........................
Multifamily Tenant-Based Rental 19,667,574 7,933,157 4,751,523 32,352,254
Assistance (Mm)........................
-----------------------------------------------------------------------
[[Page 50189]]
Total Net Benefit................... 43,792,895 45,135,748 (17,885,295) 71,043,348
----------------------------------------------------------------------------------------------------------------
Table 3c.--Cost-Benefit Summary for First Year Activities Using a Three
Percent and a Seven Percent Discount Rate for Lifetime Earnings
[$ millions]
------------------------------------------------------------------------
Three Seven
percent percent
------------------------------------------------------------------------
Hazard Evaluation Costs......................... $ 99.5 $ 99.5
Hazard Reduction Costs:
Paint Stabilization........................... 75.7 75.7
Window Replacement............................ 4.6 4.6
Friction/Impact Work.......................... 8.5 8.5
Soil Cover.................................... 2.3 2.3
Paint Hazard Abatement........................ 2.0 2.0
Dust Cleanup.................................. 60.5 60.5
-----------------------
Total First Year Costs...................... 253.2 253.2
=======================
Monetized Benefits:
Paint Stabilization........................... 71.2 20.3
Paint Hazard Abatement........................ 1.1 0.3
Soil Cover.................................... 88.0 20.2
Dust Cleanup.................................. 908.6 209.0
Paint Stabilization Market Value.............. 70.2 70.2
Window Replacement............................ 4.2 4.2
-----------------------
Total First Year Benefits................... 1,143.3 324.2
=======================
Total First Year Net Benefits............... 890.1 71.0
------------------------------------------------------------------------
5. Data Sources. The following data sources are referenced
extensively in the EA:
The HUD national survey of lead-based paint in housing,
conducted in 1989 and 1990.
``Comprehensive and Workable Plan for the Abatement of
Lead-Based Paint in Privately Owned Housing: a Report to Congress,''
prepared by HUD, December 7, 1990.
``TSCA Title IV, Sections 402(a) and 404: Target Housing
and Child-Occupied Facilities Final Rule Regulatory Impact Analysis,''
prepared by Abt Associates for EPA, August 1996.
The Evaluation of the HUD Lead-Based Paint Hazard Control
Grant program--interim data collected through March 1998.
National Academy of Sciences, National Research Council
Committee on Measuring Lead in Critical Populations, ``Measuring Lead
Exposure in Infants, Children, and Other Sensitive Populations,''
October 1993.
Third National Health and Nutrition Examination Survey, as
reported in ``Blood Lead Levels in the U.S. Population'' and ``The
Decline in Blood Lead Levels in the United States,'' Journal of the
American Medical Association, July 27, 1994; and ``Update Blood Lead
Levels--United States, 1991-1994,'' MMWR, February 21, 1997; and
additional detail obtained from NHANES III data on CD-ROM.
6. Public Comments. An industry group criticized the EA for the
proposed rule on several grounds. The group stated that population
blood lead levels may have declined further since the NHANES III Phase
1 data were released. For the final rule, HUD has used the most current
data available, which is the NHANES III, Phase 2 data covering the
years 1992-1994.
The group also suggested that HUD's conclusion that declining dust
lead levels will reduce blood lead levels in children is not
supportable because it is based on a single study. In fact, there are
at least 18 epidemiological studies which have estimated the blood
lead/dust lead relationship; HUD has not relied on a single study in
developing the final EA, but has conducted an extensive pooled analysis
of virtually all available epidemiological data (Lanphear 1998).
The group stated that HUD's EA relied on a 1991 CDC finding that 10
g/dL represents a threshold level, below which there are no
adverse effects, and that therefore the EA should not have calculated
benefits below 10 g/dL. This is an incorrect interpretation of
CDC's position. In fact, the 1991 CDC guidance document indicated that
there was evidence of adverse health effects below 10 g/dL.
Neither HUD nor CDC have stated that 10 g/dL is a
``threshold.'' The conclusion that it is reasonable to assume cognitive
benefits to reducing childhood blood lead levels, including below 10
g/dL, has been approved by EPA, the EPA external peer review
process, CDC, the HHS internal peer review process and the National
Academy of Sciences. It is clear that HUD's analysis is consistent with
the consensus of the scientific community.
The group also stated that the EA cited the correlation between
blood lead and low IQ, but erred in suggesting that correlation could
be used to establish causality and that the available scientific
studies failed to control for a variety of confounding variables. HUD
agrees that correlation alone cannot establish causality. The idea that
lead exposure causes a reduction in IQ is supported by not only
correlation, but also by time precedence, biological plausibility,
dose-effect relationship, and animal studies. When taken together, HUD
believes that all these factors establish conclusively that lead
exposure does in fact cause reductions in IQ. Time precedence has been
established by those studies that measure blood lead level at birth,
showing that the cause exists before the consequence. Biological
plausibility has been established by the studies showing anatomical,
physiological, and biochemical changes in the brain due to lead
exposure. Dose-response has also been clearly established in the
literature. Finally, all modern lead studies have in fact controlled
for confounding variables, such as socio-economic status, parent's
education and race.
The group also suggested that the lead studies upon which the EA
relied used imprecise or incomplete methods of measuring IQ. However,
if IQ was in fact measured inappropriately, one would expect to see the
studies equally distributed between those showing no effect and those
that did. In fact, virtually all of the studies on lead show the same
IQ effect. While the size of the effect and degree of statistical
significance may vary from one study to another, the basic conclusion
remains the same: increased lead exposure is related to reduced IQ.
Another industry group suggested that HUD's EA for the proposed
rule had overestimated the benefits, because children living in HUD-
assisted housing will grow up to earn less than the average income, and
thus the calculated loss in lifetime earnings was too great.
[[Page 50190]]
First, HUD does not believe it is appropriate to declare that the value
of damage to children in one socioeconomic group is less than the value
of damage to children in another socioeconomic group. Furthermore,
there is evidence that earnings may have in fact been underestimated,
because per capita productivity has increased in recent years, which
often results in increased wages. HUD used data covering the past 20
years to estimate growth in real wages, which has been low. If in fact
the country returns to the growth rate over the past century, HUD's EA
would underestimate the size of the lost lifetime earnings. HUD has
used an updated estimate of the size of the lost lifetime earnings
benefit (Salkever 1995) in the EA for this final rule to respond to
this criticism. Salkever updated the analysis of labor force
participation and other pathways by which lead can reduce expected
future earnings. Finally, HUD's EA assumed that there would be no
benefit to reducing lead exposure in adults, even though a number of
studies have demonstrated that lead can increase blood pressure and
cause a decline in both kidney function and cognition in adults. In
short, HUD's EA is likely to underestimate the total benefit involved,
not overestimate it.
An industry group suggested that HUD should use the lower
confidence bound of the scientific studies, which would reduce the
benefits of the proposed rule. HUD agrees that this would reduce the
benefits, but notes that if it chose to use the upper bound as a health
protective measure, the benefit would increase. On balance, HUD
believes that measures of central tendency appear to be best when faced
with the need to make public policy in the face of scientific
uncertainty, which is always present to some extent. HUD encourages
public comment on the EA and the final rule and will make revisions to
both documents as new evidence comes to light.
B. Paperwork Reduction Act Statement
The information collection requirements contained in this final
rule have been approved by the Office of Management and Budget (OMB) in
accordance with the requirements of the Paperwork Reduction Act of 1995
(44 U.S.C. 2501-3520), and have been assigned OMB control number 2539-
0009. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless the
collection displays a valid control number.
C. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis
When the proposed rule was published on June 7 1996, HUD certified
that the proposed regulatory requirements would not have a significant
economic impact on a substantial number of small entities. On October
9, 1998 (63 FR 54422), HUD published a Notice in the Federal Register
containing additional information about its determination that the
proposed rule would not have a significant impact on a substantial
number of small entities. HUD has concluded, upon further
consideration, that its certification that the rule will not have a
significant economic impact on a substantial number of small entities
could reasonably be questioned. Although the Department continues to
believe that the certification was reasonable and justified, the degree
of uncertainty as to what constitutes a ``significant'' impact and a
``substantial'' number of small entities in the housing industry has
led to the decision not to make such a certification at this time. HUD
is seeking to comply fully with the intent of the Regulatory
Flexibility Act and is publishing this Final Regulatory Flexibility
Analysis to describe the likely impact. This analysis expands on the
analysis published on October 9, 1998 and summarizes and responds to
public comments. HUD requests written public comment on this analysis
of the impact of the rule on small entities. The final rule does not
take effect until one year after publication, so there is time for the
Department to arrange for responses to economic impacts that it
believes would significantly diminish the effectiveness of its housing
assistance programs in providing affordable housing to families of low
and moderate income.
Comments on this notice must be received on or before November 1,
1999. Interested persons are invited to submit comments to the Rules
Docket Clerk, Office of General Counsel, room 10276, Department of
Housing and Urban Development, 451 7th Street, SW., Washington, DC
20410-0500. Comments should refer to the above docket number and title.
A copy of each comment submitted will be available for public
inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the
above address. Facsimile (FAX) comments are not acceptable. For further
information, contact: Steve Weitz, Office of Lead Hazard Control,
Department of Housing and Urban Development, 451 7th Street, SW.,
Washington, DC 20410-0500. Telephone: (202) 755-1785, ext. 106 (this is
not a toll-free number). E-Mail: stevenson__p.__weitz@hud.gov. Hearing
or speech-impaired persons may access the above telephone number via
TTY by calling the toll-free Federal Information Relay Service at 1-
800-877-8339.
1. Need For and Objectives of the Final Rule. The Lead-Based Paint
Poisoning Prevention Act of 1971, as amended, directs the U.S.
Department of Housing and Urban Development (HUD) to establish
procedures to eliminate to the extent practicable lead-based paint
hazards in federally associated housing. HUD issued implementing
regulations in 1976 and made Department-wide revisions in 1986, 1987,
and 1988. In 1992, Congress passed the Residential Lead-Based Paint
Hazard Reduction Act, which was Title X of the Housing and Community
Development Act of 1992 (Title X). Sections 1012 and 1013 of Title X
amend the Lead-Based Paint Poisoning Prevention Act to require specific
new procedures for lead-based paint notification, evaluation, and
hazard reduction activities in housing receiving Federal assistance
(section 1012) and federally owned housing at the time of sale (section
1013).
In enacting Title X, the Congress found that low-level lead
poisoning is widespread among American children, with minority and low-
income communities disproportionately affected. The Congress also found
that, at low levels, lead poisoning in children causes IQ deficiencies,
reading and learning disabilities, impaired hearing, reduced attention
span, hyperactivity, and behavior problems. In addition the Congress
found that the health and development of children living in as many as
3.8 million homes is endangered by chipping or peeling lead paint or
excessive amounts of lead-contaminated dust in their homes.
Among the stated purposes of Title X are to implement, on a
priority basis, a broad program to evaluate and reduce lead-based paint
hazards in the Nation's housing stock; to ensure that the existence of
lead-based paint hazards is taken into account in the development of
Government housing policies and in the sale, rental, and renovation of
homes and apartments; and to reduce the threat of childhood lead
poisoning in housing owned, assisted, or transferred by the Federal
Government.
The final rule sets forth new requirements for lead-based paint
hazard notification, evaluation, and reduction for federally owned
residential property and housing receiving Federal assistance. The rule
takes into consideration the substantial advancement of lead-based
paint remediation technologies and the
[[Page 50191]]
improved understanding of the causes of childhood lead poisoning by the
scientific and medical communities. Perhaps the most important results
of research on this subject during the last 10-12 years have been: (1)
The finding that lead in house dust is the most common pathway of
childhood lead exposure; and (2) the measurement of the statistical
relationship between levels of lead in house dust and lead in the blood
of young children. The final rule updates the existing HUD regulations
to reflect this knowledge, giving importance to procedures that
identify and remove dust-lead hazards as well as chipping, peeling or
flaking lead-based paint.
The rule also offers a consolidated, uniform approach to addressing
lead-based paint hazards. Currently, each individual HUD program has a
separate set of lead-based paint requirements incorporated into its
program regulations. The final regulation consolidates the HUD lead-
based paint regulations and groups requirements by type of housing
assistance, rather than by individual program. For example, the rule
contains subparts that address multifamily mortgage insurance; project-
based assistance; rehabilitation assistance; assistance for
acquisition, leasing, support services and operation; public housing;
and tenant-based assistance. Moreover, the final rule uses a clear and
consistent set of terms to specify notification, evaluation, and hazard
reduction requirements. Organizing the requirements by the type of
housing assistance and using new terminology will avoid subjecting
properties receiving assistance from more than one program to
inconsistent or redundant HUD lead-based paint requirements. These
changes will also ease the burden on HUD clients in locating and
understanding the applicable requirements and help ensure that lead
hazards are identified and safely reduced.
2. Public Comments. The Notice published in the Federal Register on
October 9, 1998 outlined the impact of the proposed rule on small
entities. Eight comments were received. Following is a summary of the
significant issues raised by the comments and a description of the
Department's assessment of and response to such issues.
a. Information Not Adequate. Two commenters requested additional
information. One commenter said they were unable to assess the impact
of the proposed regulations with the information provided in the
published Notice and requested that the Department extend the comment
period on the Notice until supporting materials are available for
public review. Another requested that HUD prepare a more detailed
analysis and submit it for comment before publishing a final rule.
In response, HUD is providing more detailed information in this
analysis and welcomes further comment. However, HUD is not delaying
further the publication of this important regulation, which is expected
to significantly reduce lead poisoning among children living in
Federally owned housing that is sold and in housing that receives
Federal assistance.
b. Capital vs. Operating Costs. One commenter stated that the
analysis was ``confusing,'' because it compared the cost of lead-based
paint hazard reduction to current rent revenue. According to this
commenter, lead-based paint activities are major capital improvement
costs that would be financed from reserves or through a loan.
HUD agrees that some property managers may budget the required work
out of reserves, some may have to finance it through a loan, while
others will be able to handle it as an operating expense. Regardless of
how the work is budgeted and financed, HUD believes that comparison to
annual rent revenues is a reasonable method of gaining a general
understanding of the significance of the costs. However, Section 3 of
this Notice includes additional financial statistics for HUD-insured
multifamily housing with project-based rental assistance; these
statistics are net annual cash flow per unit before income taxes, total
reserves per unit, and backlog of physical needs per unit.
c. Costs Will Be Higher Than HUD Assumes. Three commenters thought
HUD underestimated the cost of complying with the requirements. All of
these commenters were concerned primarily with rehabilitation programs.
One commenter stated that the cost would be between $2,000 and $4,000
per unit, while the others claimed that rehabilitation costs are 35-50
percent more when lead-based paint is involved.
While it is possible that the costs in some jurisdictions may
exceed those estimated for this analysis, HUD believes it has estimated
the national average costs of the requirements in the rule as
accurately as possible, given available data. It is important to
remember that average costs may be much lower than costs one may have
heard reported for heavily contaminated housing. Even in older housing,
some structures have a great deal of lead-based paint while others have
only a small amount, and the condition of the paint varies as well.
Also, the anecdotal costs reported in some jurisdictions may not be for
the same activities as those required in this rule. Furthermore, the
costs used in the analysis for rehabilitation are incremental costs.
For example, if it is estimated that rehabilitation will replace
windows for other reasons, that cost is not charged to lead-based paint
hazard reduction. Finally, HUD believes that the cost of lead-based
paint hazard evaluation and reduction will decline as program managers
learn how to administer the requirements efficiently and as staff and
contractors become experienced in the work.
HUD has estimated unit costs for lead-based paint hazard evaluation
and reduction based on interviews with contractors and data from the
ongoing Evaluation of HUD's Lead-Based Paint Hazard Control Grant
Program (National Center 1998). It has estimated the frequencies of
hazard occurrence based on both the Evaluation and the 1990 National
Survey of Lead-Based Paint in Housing (EPA 1995). Also, it used
American Housing Survey data to estimate the frequency with which
rehabilitation involves activities like repainting or window
replacement that overlap the requirements of lead-based paint hazard
reduction. These estimates are explained in the HUD EA for the final
rule (HUD 1999).
d. There Will Be a Significant Impact. Many commenters stated or
implied that HUD was incorrect in its determination that the rule will
not have a significant economic impact on a substantial number of small
entities. While the Department has chosen not to make such a
determination for this final rule, it continues to think that the cost
of compliance, and therefore the impact, will not be as significant as
many commenters believe.
As explained below, in section 4 of this Analysis, HUD has written
provisions into the rule, consistent with Title X, designed to
alleviate the impact of the lead-based paint evaluation and reduction
requirements on entities receiving limited Federal assistance. For
example, for most housing affected by this regulation, all that is
required is stabilization of deteriorated paint, if any is present,
followed by cleanup and clearance.
In multifamily housing, HUD estimates that compliance with this
requirement costs only about $100 per unit more than routine
repainting, and less if only a small amount of deteriorated paint is
present. This requirement pertains to housing that receives tenant-
based rental assistance and is occupied by children of less than
[[Page 50192]]
six years of age, and it applies to housing receiving project-based
rental assistance averaging less than $5,000 per unit per year (which
includes most housing that is affected by this rule and is receiving
project-based assistance). The requirements are greater for multifamily
housing receiving project-based assistance of more than $5,000 per unit
per year; but that is a relatively small percentage of the assisted
stock that was built before 1978, and most of it is professionally
managed, in relatively good physical and financial condition, and not
expected to have a high prevalence of lead-based paint hazards. For
housing receiving Federal rehabilitation assistance of $5,000 per unit
or less (which is almost one-half of the housing receiving such
assistance), the rule requires only that the rehabilitation be done in
a lead-safe manner so that it causes no contamination.
For these reasons and because there currently exist lead-based
paint regulations for virtually all HUD programs prescribing notice,
evaluation and treatment procedures, HUD continues to believe that the
economic impact of the rule will be much less than many of the
commenters believe.
e. Owners Whose Entire Portfolio Is Affected May Be Impacted
Especially Hard. One organization stated that ``small property owners
whose portfolio may only contain target properties and will have to
bear this additional expense throughout their portfolio, may well be
forced out of business by such extreme financial requirements.''
HUD agrees that the impact on an owner may depend to some extent on
the percentage of his or her portfolio that is affected by the rule.
However, many if not most housing owned by small entities will be only
partially affected by the rule. A dwelling unit is not covered if it
was built after 1977, or designated exclusively for the elderly or
persons with disabilities (unless a child of less than 6 years of age
resides or is expected to reside), or is a zero bedroom dwelling (e.g.,
efficiency, studio, or single-room occupancy unit), or is found to be
free of lead-based paint, or all lead-based paint has been removed.
Many residential properties, especially those built after 1960, have
little or no lead-based paint hazards. If a unit has no deteriorated
paint or no lead-based paint hazards (depending on the housing
program), no hazard reduction is required. Thus, owners can minimize
the cost effect of the rule through good maintenance of paint surfaces
and careful cleanup at turnover. In the case of units with tenant-based
assistance, the rule applies only to units occupied by families with
children of less than six years of age. Many properties with project-
based assistance have only part of their units under housing assistance
payments contracts. For all of these reasons, the total annual rental
revenue for affected small entities may substantially exceed the total
annual rental revenue associated with just those units subject to the
rule.
3. Impact on Small Entities. a. Number of Small Entities Affected
by the Rule. For this analysis, HUD defines a small entity as one with
less than $5 million in total revenues per year. This standard is based
on the report, ``Small Business Administration Standard Industrial Code
(SIC) Size Standards,'' dated January 1998.
Table 4 provides, for each program group, an estimate of the number
of small entities that will be affected by the first effective year of
the rule. Although some additional housing units and ownership entities
will become subject to the rule after the first effective year,
focusing on the first year facilitates analysis of impact on an annual
basis. Estimates are given for the same program groups used in the EA
for the rule, and the number of housing units for each program is taken
from the EA. For all program groups, it is estimated that approximately
203,000 small entities will be affected in the first year of the rule.
Of these, about 122,000, or 60 percent, are owners of single-family
housing being rehabilitated with HUD rehabilitation assistance.
The vast majority of these owners are expected to be individuals
who are rehabilitating their own residences. They are not businesses,
organizations or units of local government, which are the entities of
concern under the Regulatory Flexibility Act. Nevertheless data are
provided for these owners for completeness of analysis. Of the
remaining 81,000 small entities, the great majority will be owners of
rental housing; and, of those, about 56,000 will be owners of housing
with tenant-based rental assistance, 17,000 will be owners of housing
with project-based rental assistance, 1,500 will own multifamily
housing receiving rehabilitation assistance, and about 1,400 will be
local public housing authorities. HUD believes that the great majority
of local public housing authorities are not covered by the Regulatory
Flexibility Act, because they are not agencies of local governments
with populations of less than 50,000. Nevertheless, public housing data
are included in this analysis for completeness.
(1) Housing With Multifamily Mortgage Insurance and/or Project-
Based Rental Assistance. The first and second rows of Table 4 pertain
to multifamily housing that has HUD mortgage insurance but not HUD
subsidies. For this program group, the rule will apply only to
properties built before 1978 that are covered by a new application for
mortgage insurance. These properties tend to be relatively large, with
an average of 160 units per property. Twenty-one percent of the
properties have more than 200 units (Abt Associates 1999). Average
annual total revenues for unassisted HUD-insured multifamily properties
are assumed for purposes of this analysis to be $8,000 per unit. (This
assumption is based on Abt Associates 1999, Exhibit 3-1, which reports
a mean average annual total revenue for all unassisted insured
properties of $7,978.) To earn $5 million per year in total revenues, a
property with per unit annual revenue of $8,000 would have to have 625
housing units. Few projects are of this size. However, it is well known
that many of these projects are part of multiproperty portfolios. Of
all rental housing in properties with 50 or more units, 25 percent of
the properties and 50 percent of the units are owned by limited
partnerships, general partnerships, real estate corporations or other
corporations, or joint ventures (HUD 1996). Therefore it is assumed for
this analysis that 25 percent of the unassisted multifamily properties
with HUD mortgage insurance are owned by large entities and 75 percent
are owned by small entities. It is also assumed that none of the
properties owned by small entities are part of a multiproperty
portfolio. This assumption may overstate the number of small entities
somewhat. Based on this analysis, it is estimated that each year 70
applicants for unassisted multifamily mortgage insurance will be small
entities.
[[Page 50193]]
Table 4.--Number of Small Entities Affected By The First Year of the HUD Lead-Based Paint Regulations, Final
Rule
----------------------------------------------------------------------------------------------------------------
Small owner
entities as Number of
Program group Number of Units per Number of percent of small
units property properties number of ownership
properties entities
----------------------------------------------------------------------------------------------------------------
Pre-1960 Housing w/Multifamily (MF) Mortgage 3,750 160 23 75 17
Insurance.....................................
Post-1959 Housing w/ MF Mortgage Insurance..... 11,250 160 70 75 53
MF Housing w/ Project-Based Assistance, >$5K/ 35,750 115 311 75 233
Unit..........................................
MF Housing w/ Project-Based Assistance, <$5k 408,690="" 115="" 3,554="" 85="" 3,021="" unit..........................................="" single="" family="" (sf)="" housing="" w/="" project-based="" 134,280="" 2="" 67,140="" 20="" 13,428="" assistance....................................="" mf="" housing="" w/="" tenant-based="" assistance..........="" 207,050="" 7="" 29,579="" 99="" 29,283="" sf="" housing="" w/="" tenant-based="" assistance..........="" 134,500="" 1="" 134,500="" 20="" 26,900="" public="" housing.................................="" 164,000="" n/a="" 1,500="" 96="" 1,440="" sf="" housing="" w/="" rehab="" assistance,=""><$5k nit......="" 66,836="" 1="" 66,836="" 100="" 66,836="" mf="" housing="" w/="" rehab="" assistance,=""><$5k nit......="" 7,834="" 20="" 392="" 99="" 388="" sf="" housing="" w/="" rehab="" assistance,="" $5k-$25k.......="" 48,998="" 1="" 48,998="" 100="" 48,998="" mf="" housing="" w/="" rehab="" assistance,="" $5k-$25k.......="" 15,877="" 20="" 794="" 98="" 778="" sf="" housing="" w/="" rehab="" assistance,="">$25K.......... 5,817 1 5,817 100 5,817
MF Housing w/ Rehab Assistance, >$25K.......... 7,306 20 365 98 358
SF Housing w/ Acquisition, Leasing, etc. 5,093 1 5,093 100 5,093
Assistance....................................
MF Housing w/ Acquisition, Leasing, etc. 6,103 20 305 99 302
Assistance....................................
----------------------------------------------------------------
Total...................................... 1,263,134 ........... 365,277 ........... 202,945
----------------------------------------------------------------------------------------------------------------
The third and fourth rows of Table 4 present estimates for
multifamily housing with project-based rental assistance. These are
somewhat smaller properties, with an average of 115 units per project;
only 13 percent have more than 200 units (Abt Associates 1999). For
this analysis it is assumed that average annual total revenues are
$10,000 per unit for properties receiving an average of more than
$5,000 in rental assistance per unit per year and $6,000 for those with
less than $5,000. (The Abt Associates 1999 report estimates that mean
annual total revenues were $5,868 in 1995 for all ``older assisted''
multifamily properties and $10,057 for ``newer assisted'' properties.
Older assisted properties receive either mortgage interest subsidies
(under section 236 or 221(d)(3) Below Market Interest Rate insurance
programs) or rental assistance under the Section 8 Loan Management Set
Aside, Rent Supplement, Rental Assistance Payment, Section 8 Property
Disposition, or Preservation programs. Newer assisted properties
receive rental assistance under one of the following Section 8
programs: New Construction, Substantial Rehabilitation, or Moderate
Rehabilitation. Older assisted properties had mean assistance payments
of $2,576 per unit per year, with a median of $2,310. Newer assisted
properties had mean assistance payments of $7,448, with a median of
$7,106. Thus HUD assumes for purposes of this Regulatory Flexibility
Analysis that virtually all of the housing receiving more than $5,000
per unit per year in project-based assistance are in the newer assisted
properties and that virtually all of the housing receiving less than
$5,000 are in the older assisted category.) A project with $10,000 in
annual revenue per unit would have to have 500 units to earn $5 million
in total revenue. A project with $6,000 in annual revenue per unit
would need 834 units. It is assumed that 75 per cent of the owners of
properties receiving more than $5,000 per unit in assistance will be
small entities--the same as for unassisted insured properties. However,
recognizing the sharp difference in average revenues between properties
receiving more than and less than $5,000 per unit per year, it is
assumed that 85 percent of the less-than-$5,000 group will be small
entities. Based on this analysis, it is estimated that 3,254 small
entities will own multifamily properties with project-based assistance
that will be affected by the rule in its first year. All of these
should complete initial work in the first year, with only ongoing
maintenance and some reevaluation required after that. In each of the
second, third and fourth years, it is expected that 233 additional
small entities will be affected.
The fifth row in Table 4 presents estimates for all single family
housing receiving project-based assistance. HUD assumes for the
purposes of this analysis of ownership that there is an average of two
units per property in this inventory. This assumption derives from
American Housing Survey data which indicates that there are a large
number of three-and four-unit properties with project-based assistance
as well as single unit properties. (The HUD-FHA definition of ``single
family property'' is one-to-four units.) It is further assumed that
owners of single-family housing with project-based assistance own an
average of five properties. This assumption recognizes that it requires
a certain additional amount of managerial knowledge to participate in
project-based assistance programs compared to owning an unassisted
rental unit, and that such owners tend to try to maximize the benefits
of such knowledge by owning several homes. HUD also assumes, however,
that 100 percent of the owners of such housing are small entities. It
is estimated that 13,428 small entities will own single family housing
with project-based assistance that is affected by the first year of the
rule. After that, only ongoing maintenance is required. No additional
entities are expected to be affected in later years.
(2) Tenant-Based Rental Assistance. Families assisted by tenant-
based rental assistance programs are living in housing that is similar
in size and age to the nation's entire non-luxury rental housing stock.
Therefore HUD assumes that the average number of units per multifamily
property is 20, which is much smaller than the projects with mortgage
insurance and project-based assistance. However, in the tenant-based
assistance programs, HUD lead-based paint regulations apply only to
housing occupied by children of less than 6 years of age. Therefore,
based on occupancy data from a subsample of the American Housing
Survey, it is assumed that 35 percent of the 20 units (or seven) are
occupied by such children. Because
[[Page 50194]]
of the small average property size, HUD assumes that only one percent
of the owners of multifamily housing assisted under tenant-based
programs are large entities.
For single-family housing with tenant-based assistance, it is
assumed that an average of one unit per property will house families
with children of less than six years of age, that owners will own an
average of five properties, and that 100 percent of the properties are
owned by small entities.
Counting owners of both multifamily and single family housing, it
is estimated that 56,183 small entities will own housing with tenant-
based assistance affected by the first year of the rule. In future
years, because of housing turnover in these programs, it is expected
that about 20,000 small entities will become newly affected each year.
(3) Public Housing. HUD estimates that approximately 1,500 public
housing agencies will be affected by the rule. Although HUD believes
that the Regulatory Flexibility Act does not apply to the vast majority
of public housing authorities, data are presented here for
completeness. Many public housing agencies own both multifamily and
single family units, so no attempt is made in Table 1 to distinguish
between agencies owning one or the other. Although rents paid by
tenants of public housing are relatively low, HUD estimates that
subsidies boosted public housing agency revenues to an average of
approximately $7,400 per unit per year in 1995. A public housing agency
with average revenues per unit would have to have 676 units to have
revenues of $5 million. Only about 2 percent of public housing agencies
have that many units. However, many housing agencies have revenues from
sources other than the public housing program, including the project-
based and tenant-based rental assistance programs. Therefore HUD
assumes for this analysis that 4 percent of the public housing agencies
are large entities and that 96 percent, or 1,440, are small entities.
(4) Rehabilitation Assistance. There are at least three types of
entities that will be affected by the lead-based paint requirements for
housing receiving rehabilitation assistance. They are: (1) The State
and local governmental agencies and tribal agencies that are the
grantees and participating jurisdictions that receive funding from HUD;
(2) nonprofit organizations that are subrecipients or funded directly
by HUD and that operate housing development and rehabilitation
programs; and (3) private owners of housing being rehabilitated. Of
these three, the greatest concern of those commenting on the proposed
rule was with the potential economic impact on private owners.
Therefore this analysis focuses on that group.
The number of small-owner entities participating in the
rehabilitation programs is estimated to be large, because many local
programs concentrate on the rehabilitation of single family, owner-
occupied homes. HUD assumes for purposes of this analysis that in any
given year all single family units assisted by rehabilitation programs
are individually owned, i.e., that the number of owners equals the
number of units. While this may produce an overestimate of the actual
number of owners, the error is expected to be small. For multifamily
units, the same average number of 20 units per property is used as was
used in the tenant-based assistance programs; and 98 to 99 percent of
the owners are assumed to be small entities. In total, it is estimated
that 125,028 small-owner entities will be affected by the
rehabilitation assistance programs each year.
(5) Acquisition, Leasing, Support Services, or Operation.
Assumptions for the Acquisition, Leasing, Support Services or Operation
group are the same as for Rehabilitation. The number of small entities
affected is estimated to be 5,395.
b. Economic Impact. This section examines, for each program group,
the financial impact of the rule on small entities.
(1) Housing With Multifamily Mortgage Insurance, Project-Based
Rental Assistance, Tenant-Based Rental Assistance, or Public Housing.
Table 5 provides a comparison of the incremental cost of compliance
with total revenues for most of the rental housing programs affected by
the rule. Table 6 provides the following additional financial
statistics that are available from a study of the insured multifamily
inventory: annual net cash flow, total reserves, and backlog of
physical needs--all per unit (Abt Associates 1999, exhibits 2-2, 3-3,
and 3-7). Annual net cash flow equals revenues less expenses before
income taxes. Expenses include deposits to reserve accounts and debt
service as well as operating expenses. Total reserves include
replacement reserves and, for some properties, residual receipts
accounts. The physical needs backlog is the estimated cost of repairs
and replacements beyond ordinary maintenance required to restore a
property to its original condition. The financial statistics in Table 6
are available only for the multifamily HUD-insured stock that is
unassisted or assisted with project-based subsidies; they are not
available for housing receiving tenant-based assistance or for public
housing.
Two sets of compliance cost estimates are provided for each program
group in Table 5. The first column is the mean incremental cost per
unit for all properties. Incremental costs are new costs incurred in
compliance with this rule over and above the costs of compliance with
existing regulations. There is a great deal of variation around this
mean that is associated with the age, size and condition of the
housing. Many properties will have no cost at all. Therefore, the
second column of Table 5 provides the estimated incremental cost per
unit for ``high-cost properties.'' This is an approximation of the
average cost that may be incurred by properties that have all the
hazards for which the rule requires remediation for a given program.
The frequency of such high-cost cases is not known but is expected to
be between one and eight percent of all properties, depending on the
program group. All compliance cost estimates are incremental, i.e.,
over and above the costs of current HUD lead-based paint regulations.
The cost estimates are derived from the EA, which in turn is based on
data collected from discussions with lead-based paint inspectors and
hazard reduction contractors in 1995 and the evaluation of the HUD
Lead-Based Paint Hazard Control Grant Program (data collected 1994-
1997). No cost estimates are shown for post-1959 unassisted housing
with HUD multifamily mortgage insurance because the rule requires only
that sponsors agree to conduct ongoing lead-based paint maintenance.
Estimates of mean annual total revenues per unit are based on a
1995 survey of HUD-insured multifamily rental housing (Abt Associates
1999, exhibit 3-1) and estimates by HUD staff. As with Table 4, all
estimates pertain to housing affected by the first year of the rule.
In comparing compliance costs with revenue or with other financial
data, it is important to remember that the compliance costs are not
continuing annual costs. Rather they are one-time costs of hazard
evaluation and control, after which the owner must simply maintain the
paint surfaces and conduct maintenance and repair activities in a lead-
safe manner. For some program groups, owners will have to conduct at
least two reevaluations in two-year intervals after the initial hazard
reduction activity to assure that lead-based paint hazards have not
reoccurred. Also, many owners have
[[Page 50195]]
properties that are not covered by the rule as well as those that are
affected. The financial impact on such owners will be less than on
those whose portfolios consist solely of pre-1978 HUD-associated
housing.
Table 5 indicates that, in the first effective year of the rule,
the mean incremental cost of compliance is expected to vary from 1.0 to
6.9 percent of total annual revenues for the insured multifamily stock
and housing receiving project-based rental assistance. Public housing
and unassisted insured multifamily housing built before 1960 have the
highest average costs and the highest percentage of revenue, because of
the stringency of the requirements and the age of the stock. High-cost
properties have ratios of cost to revenue of 9.0 to 28 percent; but
these percentages should be used only as rough indicators, because the
universe of the revenue estimate (all properties) does not correspond
to that of the high-cost properties.
Table 6 provides additional financial statistics from the Abt
Associates report on the multifamily insured stock. Data from the Abt
study for unassisted properties are not included in this table, because
they are not necessarily representative of properties that will apply
for mortgage insurance when the rule becomes effective. For newer
assisted properties (defined as properties receiving Section 8 New
Construction, Substantial Rehabilitation, or Moderate Rehabilitation),
the average (mean) cash flow was a substantial $1,105 per unit. This
compares to lead-based paint regulatory compliance costs of $255
(average for all properties) and $1,120 (high-cost properties) for
housing with project-based assistance of more than $5,000 per unit.
While reserves also appeared respectable for most of these newer
assisted properties, the mean backlog of physical needs was $3,214
compared to a median of $1,324, indicating that a few properties had
very high backlog needs. Also, 13 percent of the newer assisted
properties had negative cash flow, again indicating that some
properties are in financial distress.
For the older assisted properties, which correspond to housing with
project-based assistance of less than $5,000 per unit, mean annual net
cash flow per unit was $283, compared with compliance costs of $60-$82
per unit (average for all properties) and $570-$870 (high-cost
properties). The Abt study found that 33 percent of the older assisted
properties had a negative cash flow and that another 42 percent had a
cash flow of $0-$500 per unit. Further, the study found $3,929 in
average (mean) backlog of physical needs per unit, with a median of
$2,096, indicating that some properties have very high deferred needs.
Thus it appears that a certain percentage of this older stock is in
financial distress, even more than with the newer assisted properties.
Table 5.--Incremental Cost of Compliance as a Percentage of Annual Revenue, by Program Group: Nonfederal Rental
Housing Affected by the First Year of the Rule
[Not including housing receiving assistance for rehabilitation or acquisition, leasing, support services or
operation. Cost and revenue data as of 1995-1996]
----------------------------------------------------------------------------------------------------------------
Average Average
Average Average Average incremental incremental
incremental incremental annual compliance compliance
compliance compliance total cost as a cost as a
Program group cost per cost per revenue per percent of percent of
unit, all unit, high- unit, all revenue, revenue,
properties cost properties all high-cost
properties properties properties
----------------------------------------------------------------------------------------------------------------
Pre-1960 Housing w/Multifamily (MF) Mortgage $414 $1,120 $8,000 5.2 14
Insurance.....................................
Post-1959 Housing w/MF Mortgage Ins............ 0 0 8,000 0 0
MF Housing w/Project-Based Assistance, >$5K/ 255 1,120 10,000 2.6 11
Unit..........................................
MF Housing w/Project-Based Assistance, <$5k 60="" 570="" 6,000="" 1.0="" 9.5="" unit..........................................="" sf="" housing="" w/project-based="" assistance..........="" 82="" 870="" 6,500="" 1.3="" 13="" mf="" housing="" w/tenant-based="" rental="" assistance....="" 59="" 560="" 6,200="" 1.0="" 9.0="" sf="" housing="" w/tenant-based="" rental="" assistance....="" 103="" 870="" 6,200="" 1.7="" 14="" mf="" public="" housing..............................="" 311="" 1,120="" 7,400="" 4.2="" 15="" sf="" public="" housing..............................="" 511="" 2,095="" 7,400="" 6.9="" 28="" ----------------------------------------------------------------------------------------------------------------="" table="" 6.--financial="" statistics="" for="" multifamily="" properties="" with="" hud-="" insured="" mortgages="" 1995="" [in="" 1995="" dollars="" per="" 2-bedroom="" equivalent="" unit]="" ------------------------------------------------------------------------="" newer="" assisted="" older="" assisted="" properties="" properties="" ------------------------------------------------------------------------="" annual="" net="" cash="" flow="" per="" unit:="" mean............................="" $1,105="" $283="" median..........................="" $742="" $162="" percentage="" of="" properties="" with="" 13%="" 33%="" negative="" cash="" flow.................="" percentage="" of="" properties="" with="" cash="" 22%="" 42%="" flow="" of="" $0-$500....................="" total="" reserves="" per="" unit:="" mean............................="" $1,924="" $1,766="" median..........................="" $1,163="" $1,240="" backlog="" of="" physical="" needs="" per="" unit:="" mean............................="" $3,214="" $3,929="" median..........................="" $1,324="" $2,096="" ------------------------------------------------------------------------="" [[page="" 50196]]="" it="" is="" apparent="" from="" these="" statistics="" that="" some="" properties="" will="" not="" be="" able="" to="" fund="" lead-based="" paint="" compliance="" out="" of="" current="" income.="" hud="" estimates="" that="" no="" more="" than="" half="" of="" the="" housing="" with="" project-based="" assistance="" will="" be="" able="" to="" obtain="" an="" adjustment="" in="" assistance="" levels="" to="" finance="" the="" cost="" of="" the="" lead-based="" paint="" requirements.="" for="" projects="" that="" do="" not="" qualify="" for="" a="" rent="" adjustment="" and="" do="" not="" have="" sufficient="" income="" to="" cover="" the="" cost="" of="" compliance="" with="" the="" rule,="" hud="" will="" work="" with="" owners="" to="" find="" funds="" from="" other="" sources.="" depending="" on="" the="" property,="" this="" process="" may="" include="" the="" financial="" restructuring="" known="" as="" mark="" to="" market.="" mark-to-market="" processing="" will="" address="" lead-based="" paint="" requirements="" in="" the="" restructuring="" commitment.="" other="" possible="" sources="" of="" funds="" include="" replacement="" reserves,="" grants,="" and="" community="" development="" block="" grant="" funds.="" (2)="" housing="" receiving="" rehabilitation="" assistance.="" for="" housing="" receiving="" rehabilitation="" assistance,="" table="" 7="" compares="" the="" cost="" of="" compliance="" to="" an="" assumed="" average="" total="" cost="" of="" rehabilitation.="" assumed="" average="" total="" rehabilitation="" costs="" are="" $4,000="" for="" projects="" receiving="" $5,000="" or="" less="" in="" rehabilitation="" assistance,="" $15,000="" for="" those="" receiving="" between="" $5,000="" and="" $25,000="" in="" assistance,="" and="" $30,000="" for="" those="" receiving="" more="" than="" $25,000="" in="" assistance.="" average="" compliance="" costs="" vary="" from="" 1.1="" to="" 4.2="" percent="" of="" these="" total="" project="" costs.="" costs="" for="" high-compliance-cost="" projects="" vary="" from="" 3.3="" to="" 9.3="" percent="" of="" total="" rehabilitation="" cost.="" single="" family="" properties="" tend="" to="" have="" a="" higher="" cost="" impact="" than="" multifamily,="" because="" they="" are="" larger="" units="" on="" average="" and="" usually="" require="" more="" exterior="" work.="" virtually="" all="" hud="" rehabilitation="" assistance="" is="" administered="" by="" state,="" local="" and="" tribal="" agencies,="" and="" many,="" if="" not="" most,="" of="" these="" programs="" are="" operated="" as="" low-interest="" loans.="" if="" property="" owners="" are="" unable="" to="" finance="" loans="" for="" the="" incremental="" cost="" of="" lead="" hazard="" control,="" the="" administering="" agencies="" have="" the="" option="" to="" finance="" such="" costs="" with="" a="" grant="" out="" of="" program="" funds.="" table="" 7.--incremental="" cost="" of="" compliance="" as="" a="" percentage="" of="" average="" rehabilitation="" cost,="" by="" program="" group="" housing="" receiving="" federal="" rehabilitation="" assistance="" [cost="" data="" as="" of="" 1995-1996]="" ----------------------------------------------------------------------------------------------------------------="" average="" average="" average="" incremental="" incremental="" average="" incremental="" compliance="" compliance="" incremental="" compliance="" average="" cost="" of="" cost="" as="" a="" cost="" as="" a="" program="" group="" compliance="" cost="" per="" rehabilitation,="" percentage="" percentage="" cost="" per="" unit,="" high-="" all="" properties="" of="" average="" of="" average="" unit,="" all="" cost="" rehab="" cost,="" rehab="" cost,="" properties="" properties="" all="" high-cost="" properties="" properties="" ----------------------------------------------------------------------------------------------------------------="" single="" family="" (sf)="" housing="" w/="" rehab="" $153="" $170="" $4,000="" 3.8="" 4.3="" assistance,=""><$5k nit.....................="" multifamily="" (mf)="" housing="" w/="" rehab="" 113="" 130="" 4,000="" 2.8="" 3.3="" assistance,=""><$5k nit.....................="" sf="" housing="" w/="" rehab="" assistance,="" $5k-$25k...="" 627="" 1,275="" 15,000="" 4.2="" 8.5="" mf="" housing="" w/="" rehab="" assistance,="" $5k-$25k...="" 265="" 720="" 15,000="" 1.8="" 4.8="" sf="" housing="" w/="" rehab="" assistance,="">$25K/Unit. 891 2,775 30,000 3.0 9.3
MF Housing w/ Rehab Assistance, >$25K/Unit. 342 1,140 30,000 1.1 3.8
----------------------------------------------------------------------------------------------------------------
(3) Acquisition, Leasing, Support Services, and Operation. This
program group does not appear on Table 5, because HUD has no aggregate
financial information for the housing affected by this subpart of the
rule. For single family properties, the average cost of compliance is
estimated at $251 per unit for all properties; the high cost is $870.
For multifamily properties, the average cost per unit is $122 for all
properties and $460 for high-cost properties. These costs are similar
to those of housing with tenant-based assistance, and the financial
impact is likely to be similar also.
4. Final Rule Requirements. The final rule establishes the
following types of lead-based paint requirements: (1) Distribution of a
lead hazard information pamphlet; (2) notice to occupants of evaluation
and hazard reduction activities; (3) evaluation of lead-based paint
hazards; (4) reduction of lead-based paint hazards; (5) ongoing
monitoring and reevaluation; (6) response to a child with an elevated
blood lead level; and (7) record keeping.
a. Lead Hazard Information Pamphlet. The rule, in accordance with
the statute, requires the distribution of the EPA pamphlet entitled,
``Protect Your Family From Lead in Your Home'' to all existing tenants
or owner-occupants who have not already received it in compliance with
the lead-based paint disclosure rule (24 CFR part 35, subpart H) or the
EPA rule implementing TSCA section 406(b) (40 CFR part 745, subpart E).
Since the disclosure rule was effective in the Fall of 1996, HUD
expects that most tenants will have already received the pamphlet when
the rule becomes effective in year 2000 (see discussion of effective
date below). Current HUD regulations require provision of information
similar to that in the EPA pamphlet, so this is not a totally new
requirement.
b. Resident Notice. The rule, in accordance with Title X, requires
that occupants of rental housing receiving Federal assistance be
provided written notice of risk assessments, paint inspections, or
hazard reduction activities required by this regulation and undertaken
at the property. This is a new requirement in HUD regulations. The
required notice following risk assessment or inspection provides
information to occupants about the nature, scope, and results of the
evaluation and a name and phone number to contact for more information
or for access to the actual evaluation reports. Notices to tenants
regarding hazard reduction activities must contain information about
the treatments performed and the location of any remaining lead-based
paint. HUD is providing a sample format for resident notices in the
final rule.
c. Evaluation. The rule establishes four types of evaluation
procedures: (1) A lead-based paint inspection, which is a surface-by-
surface investigation to determine the presence of lead-based paint on
painted surfaces of a dwelling, typically through the use of a portable
X-ray fluorescence (XRF) analyzer; (2) paint testing, which is a
limited form of lead-based paint inspection aimed at determining the
lead content of deteriorated paint or paint to be
[[Page 50197]]
disturbed by rehabilitation; (3) a risk assessment, which is an on-site
investigation to determine and report the existence, nature, severity,
and location of lead-based paint hazards, which, in accordance with
Title X, include dust-lead and soil-lead hazards as well as
deteriorated lead-based paint, as well as lead-based paint on friction,
impact and chewable surfaces; and (4) clearance, which is an
examination conducted after hazard reduction, rehabilitation, or
maintenance activities (a) to visually determine that deteriorated
surfaces that are known or presumed to be lead-based paint have been
controlled or abated and that visible dust, debris, paint chips, or
other residue have been cleaned up; and (b) to collect samples of
settled dust and test them for lead content to determine that no dust-
lead hazards remain. A risk assessment includes limited dust wipe
sampling or other environmental sampling techniques, identification of
hazard reduction options, and a report explaining the results of the
investigation. In some housing programs, the rule calls for a visual
assessment instead of a lead-based paint inspection or risk assessment.
A visual assessment does not require environmental sampling but
requires the visual examination of interior and exterior painted
surfaces for signs of deterioration. The rule requires different types
of evaluation for different types of housing assistance programs and
different ages of housing. The differences in the requirements largely
reflect the extent of Federal involvement in the property or the
availability of funding.
Existing HUD lead-based paint regulations require a visual
inspection for defective paint surfaces and, in some cases, testing of
and abatement of any lead-based paint on chewable paint surfaces. These
methods are similar in kind to the visual assessment and paint testing
requirements under the proposed rule.
d. Hazard Reduction Activities. Three types of hazard reduction
activities are required in the rule: (1) Abatement, which is a set of
measures designed to permanently eliminate lead-based paint or lead-
based paint hazards through removal, permanent enclosure or
encapsulation, replacement of components, or removal or covering of
lead-contaminated soil; (2) interim controls, which are designed to
reduce temporarily human exposure to lead-based paint hazards through
repairs, maintenance, painting, temporary containment, specialized
cleaning, and ongoing monitoring; and (3) paint stabilization, which is
the removal of deteriorated paint, repair of any physical defect in the
substrate that may be causing paint deterioration, and repainting.
Specialized cleanup and clearance are required after all these
activities.
As with the requirements for evaluation, the final rule requires
different types of hazard reduction activities for different types of
housing assistance programs and different periods of construction. In
the case of public housing, abatement of lead-based paint and lead-
based paint hazards is required during the course of modernization
under the current regulation. Under the final rule, the public housing
requirements would remain essentially the same, with the additional
requirement of interim controls to reduce identified lead-based hazards
before scheduled abatement can occur.
e. Ongoing Lead-Based Paint Maintenance and Reevaluation. If
temporary hazard reduction measures are used and there is a continuing
financial relationship between HUD and the residential property, the
final rule requires that owners conduct an annual check to identify any
new deteriorated paint and to ensure that prior hazard reduction
treatments are still intact. If there is new deteriorated paint, it is
to be repaired; if old treatments are failing, they are to be fixed.
For some housing programs, the rule requires that a certified risk
assessor conduct a reevaluation of the property at specified intervals
to identify any reaccumulation of lead-contaminated dust and any
failure of prior hazard reductions.
f. Response To a Child With an Elevated Blood Lead Level. In some
HUD programs, existing regulations use the presence of a child under
age seven with an elevated blood lead level (EBL) as a trigger to
initiate testing for and abatement of lead-based paint on chewable
surfaces. The final rule changes the cutoff age from seven to six, to
conform to guidance from the Centers for Disease Control and Prevention
(CDC). The rule also changes the response requirement to a risk
assessment and interim controls of any identified lead-based paint
hazards, and changes the definition of an elevated blood lead level for
the purposes of this rule from equal to or exceeding 25 micrograms per
deciliter (g/dL) to 20 g/dL for a single venous test
or of 15-19 g/dL in two tests taken at least 3 months apart.
This definitional change was made in consultation with CDC to conform
to their existing medical guidelines.
g. Record Keeping. Grantees, owners, public housing authorities,
and other designated parties are responsible for keeping a copy of each
notice, evaluation, clearance or hazard reduction report for at least
three years. If ongoing lead-based paint maintenance and/or
reevaluation is required, such records must be kept and made available
for HUD review until at least three years after such ongoing activities
are no longer required.
5. Description of Alternatives and Minimization of Economic Impact.
The specificity of the statute left HUD with no alternative to issuing
an implementing regulation. However, in developing the final rule, HUD
considered several alternative policies related to minimizing the
burden of the rule on grantees, property owners and other parties
responsible for complying with its requirements. Other alternatives
were suggested by commenters on the proposed rule. In many cases, the
public comments on the proposed rule articulated the issues discussed
within the Department and at meetings with interested parties.
a. Effective Date. One consideration pertained to the effective
date of the rule. On the one hand, an early effective date (such as 30
or 60 days after publication) seemed appropriate because the health of
young children was at stake and the rule was delayed relative to the
statutory schedule. On the other hand, HUD was aware that property
owners, State and local agencies and other responsible parties needed
time to prepare for compliance. The Department has concluded that such
preparation is essential for safe, effective compliance and therefore
is setting the effective date as one year after publication.
Commenters also urged HUD to make it clear that projects for which
financing had been committed prior to the effective date should not
have to be redesigned or refinanced in midstream. In response, HUD is
including in the rule provisions that clarify exactly when projects in
the pipeline are affected by the new requirements.
In addition to the phase-in period of one year, the final rule, in
accordance with the statute, provides a more extended phase-in period
for multifamily housing receiving project-based assistance of more than
$5,000 per unit per year and was constructed after 1959. For some
housing, this phase-in could last for 4 years after publication of the
final rule.
b. Stringency of Requirements in Relation to Amount of Federal
Assistance and Nature of Program. The Department recognizes that the
statute and the legislative history indicates a desire on the part of
Congress to make
[[Page 50198]]
the stringency of requirements reasonable in relation to the amount of
Federal assistance, the type and size of property, and the nature of
the program. HUD considered various ways to achieve this goal and
concluded with three important policies: (1) Multifamily properties
receiving no more than $5,000 per unit per year in project-based
assistance and all single family properties receiving project-based
assistance have less stringent requirements than multifamily properties
receiving more than $5,000 in project-based assistance; (2) housing
receiving no more than $5,000 per unit in Federal rehabilitation
assistance have much less stringent requirements than those receiving
more than $5,000; and (3) the requirements for housing occupied by
families with tenant-based rental assistance apply only to units
occupied by families with children of less than 6 years of age. By
applying the rule narrowly to tenant-based rental assistance programs,
HUD has mitigated some of the cost and burden on small businesses,
while still realizing significant benefits by targeting units that
house families with young children.
c. De Minimis Area of Deteriorated Paint. In the proposed rule, in
an attempt to make the requirements of the rule as cost-effective as
possible, the Department proposed a certain area of deteriorated paint
that had to be present before treatment was required under the rule.
This ``de minimis'' was drawn from the HUD Guidelines, where it was
established as a way to focus resources on the highest priority hazards
while maintaining effectiveness in hazard reduction. The de minimis
areas were as follows: More than 10 square feet on an exterior wall;
more than two square feet on a component with a large surface area
other than an exterior wall (such as interior walls, ceilings, floors
and doors); or more than 10 percent of the total surface area on an
interior or exterior component with a small surface area including, but
not limited to window sills, baseboards, and trim. Comments on this
proposal were mixed. Some commenters found it difficult to understand
and put in practice, indicating that people would spend too much time
measuring the exact areas of deteriorated paint instead of focusing on
making housing lead safe. Others welcomed the proposal as a reasonable
way to target hazard reduction resources. In preparing the final rule,
HUD has removed the de minimis provision with regard to deteriorated
paint, after concluding that experience in the tenant-based assistance
programs (where the de minimis provision was made effective in 1995)
indicates that it is a cause of confusion.
d. Qualifications. Another subject of concern to HUD and to
commenters on the proposed rule was the qualifications of individuals
performing the hazard evaluation and reduction activities required by
the rule. The proposed rule allowed dust and soil testing by persons
employed by local housing agencies that are trained but not certified.
Two commenters felt that it would be a mistake to allow uncertified
individuals to take dust and soil tests, indicating that this appeared
to be an avoidance of the certification law established by EPA
regulations. EPA agreed with this point of view. HUD concluded that,
because of the importance of dust and soil testing to the effectiveness
of the regulation, there must be an established set of qualifications
for those doing such testing. At this time, the only such program is
that administered by EPA under authority of sections 402 and 404 of the
Toxic Substances Control Act. Therefore HUD requires in the final rule
that all dust and soil testing, as well as lead-based paint
inspections, risk assessments, clearances and abatements, be performed
or approved by people certified in accordance with EPA regulations or a
State or tribal program authorized by EPA. To increase the availability
of persons qualified to perform clearance examinations, HUD allows
certified clearance technicians to perform clearances; and HUD also
allows uncertified but trained technicians to perform clearances,
provided the clearance report is signed by a certified lead-based paint
inspector or risk assessor.
The proposed rule also required workers performing interim controls
to be supervised by a person who is certified under EPA procedures as
an abatement supervisor. Some commenters felt that it was unnecessary
to require that interim controls workers be supervised by a certified
abatement supervisor, suggesting that such workers could simply be
trained in safe work practices. HUD agrees and requires in the final
rule that workers performing lead-based paint maintenance and interim
controls, including paint stabilization, only be trained in safe work
practices. A series of optional acceptable training programs is listed.
e. Options to Provide Greater Flexibility. Several commenters on
the proposed rule urged that HUD allow greater flexibility in ways to
meet the goals of the rule. In particular, it was suggested that
options be provided, such as the standard treatments recommended by the
Task Force on Lead-Based Hazard Reduction and Financing as an option to
conducting a risk assessment and interim controls. Such options would
allow owners to select the procedure that is most cost-effective for
them to achieve the goal of lead-based paint hazard control. The
standard treatments option has been incorporated into today's final
rule.
In the proposed rule, HUD included a provision requiring owners of
multifamily housing with project-based rental assistance to prepare a
lead hazard reduction plan. The hazard reduction plan was a suggestion
of the Task Force on Lead-Based Paint Hazard Reduction and Financing.
Its purpose was to give owners flexibility in prioritizing hazard
reduction work. Several commenters, however, noted that it would be a
paperwork ``nightmare,'' not only for the owners but for HUD as well.
Therefore the final rule requires simply that the hazard reduction work
be completed within 90 days after completion of the risk assessment
report in units occupied by children of less than six years of age and
within 12 months in all other units. HUD believes this change provides
flexibility without unnecessary paperwork.
HUD recognizes that some States, tribes, or local governments may
have established procedures for lead-based paint evaluation and hazard
reduction that may be somewhat different than but as protective as
those in this rule. Therefore the rule provides that HUD may waive or
modify certain requirements if the Department determines that such
local provisions are as protective as those of the HUD rule.
f. Avoidance of Duplication. The final rule was written with
careful consideration of existing regulations developed by other
Federal agencies, States, Indian tribes and localities. To minimize
duplication and avoid confusion, HUD has explicitly stated that this
rulemaking does not preclude States, Indian tribes or localities from
conducting a more protective procedure than the minimum requirements
set out in the proposed rule. Similarly, if more than one requirement
covers a condition or activity, the most protective method shall apply.
HUD has worked and continues to work closely with the EPA and CDC to
ensure that regulations from two or more Federal agencies are
consistent and not duplicative. Wherever possible, HUD has referenced
relevant requirements established by EPA.
[[Page 50199]]
VII. Findings and Certifications
A. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. This final rule does not impose any
Federal mandates on any State, local, or tribal governments or the
private sector within the meaning of Unfunded Mandates Reform Act of
1995.
B. Environmental Impact
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implement section 102(2)(C) of the National Environmental Policy
Act of 1969 (42 U.S.C. 4223). The Finding of No Significant Impact is
available for public inspection between the hours of 7:30 a.m. and 5:30
p.m. weekdays in the Office of the Rules Docket Clerk, Office of
General Counsel, Room 10276, Department of Housing and Urban
Development, 451 Seventh Street, SW, Washington, DC.
C. Executive Order 12866, Regulatory Planning and Review
This rule was reviewed by the Office of Management and Budget (OMB)
under Executive Order 12866 on Regulatory Planning and Review, issued
by the President on September 30, 1993. OMB determined that this rule
is an economically significant regulatory action, as defined in section
3(f)(1) of the Order. As described in section VI of this preamble, an
Economic Analysis (EA) has been prepared that examines the economic
costs and benefits of the final rule. The EA is available for
inspection and copying in the office of the Departments' Rules Docket
Clerk, Room 10276, 451 Seventh Street, SW, Washington, DC 20410. Any
changes made to the final rule subsequent to its submission to OMB are
identified in the docket file, which is also available for public
inspection in the office of the Rules Docket Clerk.
D. Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will not have federalism implications concerning the division of local,
State, and Federal responsibilities. The purpose of this rule is to
ensure that housing receiving Federal assistance and federally owned
housing that is to be sold does not pose lead-based paint hazards to
young children. It implements Title X of the Housing and Community
Development Act of 1992. No programmatic or policy change will result
from this rule that will affect the relationship between the Federal
government and State and local governments.
E. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
This rule will not pose an environmental health risk or safety risk
for children.
F. Congressional Review of Major Final Rules
This final rule is a ``major rule'' as defined in the Congressional
Review Act (5 U.S.C. Chapter 8).
VIII. References
1. Abt Associates 1999. Abt Associates, Inc., Status of HUD-
Insured (or Held) Multifamily Rental Housing in 1995, Final Report.
Prepared for U.S. Department of Housing and Urban Development,
Office of Policy Development and Research, May 1999.
2. Ashengrau 1997. Aschengrau A, Beiser A, Bellinger D,
Copenhafer D, Weitzman M. Residential lead-based paint hazard
remediation and soil-lead abatement among children with mildly
elevated blood lead levels, American Journal of Public Health
87:1698-1702, 1997.
3. ATSDR 1988. Agency for Toxic Substances and Disease Registry,
Public Health Service, U.S. Department of Health and Human Services.
The Nature and Extent of Lead Poisoning in Children in the United
States: A Report to Congress. Atlanta, GA, 1988.
4. Battelle 1997. Summary and Assessment of Published
Information on Determining Lead Exposures and Mitigating Lead
Hazards Associated With Dust and Soil in Residential Carpets,
Furniture and Forced Air Ducts. Prepared for U.S. Environmental
Protection Agency, December 1997 (EPA 747-S-97-001).
5. CDC 1990. Centers for Disease Control, Public Health Service,
U.S. Department of Health and Human Services. Strategic Plan for the
Elimination of Childhood Lead Poisoning. November 1990.
6. CDC 1997a. Centers for Disease Control and Prevention.
Update: Blood Lead Levels--United States, 1991-1994, Morbidity and
Mortality Weekly Report 46: 141-146. 1997.
7. CDC 1997b. Centers for Disease Control and Prevention.
Screening Young Children for Lead Poisoning: Guidance for State and
Local Public Health Officials. Atlanta, 1997.
8. Clark 1996. Clark S, Bornschein RL, Pan W, Menrath W, Roda S,
Grote J. The relationship between surface dust-lead loadings on
carpets and the blood lead of young children, Environmental
Geochemistry and Health (18) 143-146, 1996.
9. EPA 1995. U.S. Environmental Protection Agency, Office of
Pollution Prevention and Toxics, Report on the National Survey of
Lead-Based Paint in Housing, April 1995 (EPA 747-R95-005).
10. Farfel 1990. Farfel MR, Chisolm JJ Jr. Health and
environmental outcomes of traditional and modified practices for
abatement of residential lead-based paint, American Journal of
Public Health 80:1240-1245.
11. HUD 1996. U.S. Department of Housing and Urban Development
and Bureau of the Census, Department of Commerce, Property Owners
and Managers Survey, 1996.
12. HUD 1997. Moving Toward a Lead-Safe America: A Report to the
Congress of the United States. U.S. Department of Housing and Urban
Development, Office of Lead hazard Control. February 1997.
13. HUD 1998. U.S. Department of Housing and Urban Development,
Office of Lead Hazard Control. Field Evaluation of Lead-Based Paint
Inspections. Washington, 1998.
14. HUD 1999. Regulatory Impact Analysis of the Final Rule on
Lead-Based Paint: Requirements for Notification, Evaluation and
Reduction of Lead-Based Paint Hazards in Federally Owned Residential
Property and Housing Receiving Federal Assistance. Prepared by ICF,
Inc. for U.S. Department of Housing and Urban Development, Office of
Lead Hazard Control, 1999.
15. Lanphear 1996. Lanphear BP, Weitzman M, Winter NL, Tanner M,
Yakir B, Eberly S, Emond M, Matte TD. Lead-contaminated house dust
and urban children's blood lead levels. American Journal of Public
Health, 86:1416-1421, 1996.
16. Lanphear 1998. Lanphear BP, Matte TD, Rogers J, Clickner R,
Dietz B, Bornschein RL, Succop P, Mahaffey KR, Dixon S, Galke W,
Rabinowitz M, Farfel M, Rohde C, Schwartz J, Ashley P, Jacobs DE.
The contribution of lead-contaminated house dust and residential
soil to children's blood lead levels, Environmental Research;
79(1):51-68. October 1998.
17. National Academy of Sciences 1993. Measuring Lead Exposure
in Infants, Children and Other Sensitive Populations. Committee on
Measuring Lead in Critical Populations, Board on Environmental
Studies and Toxicology, Commission on Life Sciences, National
Academy of Sciences, 1993.
18. National Center 1998. Evaluation of the HUD Lead-Based Paint
Hazard Control Grant Program: Fifth Interim Report. Prepared for HUD
by the National Center for Lead-Safe Housing and the University of
Cincinnati Department of Environmental Health, March 1998.
19. Salkever 1995. Salkever DS. Updated Estimates of Earnings
Benefits From Reduced Exposure of Children to Environmental Lead.
Environmental Research, 70, 1995.
20. Swindell 1994. Swindell SL, Charney E, Brown MJ, Delaney J.
Home abatement and blood lead changes in Children with Class III
lead poisoning, Clinical Pediatrics, 536-541, September 1994.
List of Subjects
24 CFR Part 35
Grant programs--housing and community development, Lead poisoning,
Mortgage insurance, Rent subsidies, Reporting and recordkeeping
requirements.
[[Page 50200]]
24 CFR Part 91
Aged, Grant programs--housing and community development, Homeless,
Individuals with disabilities, Low and moderate income housing,
Reporting and recordkeeping requirements.
24 CFR Part 92
Administrative practice and procedure, Grant programs--housing and
community development, Grant programs--Indians, Indians, Low and
moderate income housing, Manufactured homes, Rent subsidies, Reporting
and recordkeeping requirements.
24 CFR Part 200
Administrative practice and procedure, Claims, Equal employment
opportunity, Fair housing, Home improvement, Housing standards,
Incorporation by reference, Lead poisoning, Loan programs--housing and
community development, Minimum property standards, Mortgage insurance,
Organization and functions (Government agencies), Penalties, Reporting
and recordkeeping requirements, Social security, Unemployment
compensation, Wages.
24 CFR Part 203
Hawaiian Natives, Home improvement, Indians--lands, Loan programs--
housing and community development, Mortgage insurance, Reporting and
recordkeeping requirements, Solar energy.
24 CFR Part 206
Aged, Condominiums, Loan programs--housing and community
development, Mortgage insurance, Reporting and recordkeeping
requirements.
24 CFR Part 280
Community development, Grant programs--housing and community
development, Loan programs--housing and community development, Low and
moderate income housing, Nonprofit organizations, Reporting and
recordkeeping requirements.
24 CFR Part 291
Community facilities, Conflict of interests, Homeless, Lead
poisoning, Low and moderate income housing, Mortgages, Reporting and
recordkeeping requirements, Surplus government property.
24 CFR Part 511
Administrative practice and procedure, Grant programs--housing and
community development, Lead poisoning, Low and moderate income housing,
Reporting and recordkeeping requirements, Technical assistance.
24 CFR Part 570
Administrative practice and procedure, American Samoa, Community
development block grants, Grant programs--education, Grant programs--
housing and community development, Guam, Indians, Lead poisoning, Loan
programs--housing and community development, Low and moderate income
housing, New communities, Northern Mariana Islands, Pacific Islands
Trust Territory, Pockets of poverty, Puerto Rico, Reporting and
recordkeeping requirements, Small cities, Student aid, Virgin Islands.
24 CFR Part 572
Condominiums, Cooperatives, Fair housing, Government property,
Grant programs--housing and community development, Low and moderate
income housing, Nonprofit organizations, Reporting and recordkeeping
requirements.
24 CFR Part 573
Condominiums, Fair housing, Government property, Grant programs--
housing and community development, Low and moderate income housing,
Nonprofit organizations, Reporting and recordkeeping requirements.
24 CFR Part 574
AIDS, Community facilities, Disabled, Emergency shelter, Grant
programs--health programs, Grant programs--housing and community
development, Grant programs--social programs, Homeless, Housing, Low
and moderate income housing, Nonprofit organizations, Rent subsidies,
Reporting and recordkeeping requirements, Technical assistance.
24 CFR Part 576
Community facilities, Emergency shelter grants, Grant programs--
housing and community development, Grant programs--social programs,
Homeless, Reporting and recordkeeping requirements.
24 CFR Part 582
Homeless, Rent subsidies, Reporting and recordkeeping requirements,
Supportive housing programs--housing and community development,
Supportive services.
24 CFR Part 583
Homeless, Rent subsidies, Reporting and recordkeeping requirements,
Supportive housing programs--housing and community development,
Supportive services.
24 CFR Part 585
Grant programs--housing and community development, Homeless, Low
and very low-income families, Reporting and recordkeeping requirements.
24 CFR Part 761
Drug abuse, Drug traffic control, Grant programs--housing and
community development, Grant programs--low- and moderate-income
housing, Reporting and recordkeeping requirements.
24 CFR Part 881
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 882
Grant programs--housing and community development, Homeless, Lead
poisoning, Manufactured homes, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 883
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 886
Grant programs--housing and community development, Lead poisoning,
Rent subsidies, Reporting and recordkeeping requirements.
24 CFR Part 891
Aged, Capital advance programs, Civil rights, Grant programs--
housing and community development, Individuals with disabilities, Loan
programs--housing and community development, Low- and moderate-income
housing, Mental health programs, Rent subsidies, Reporting and
recordkeeping requirements.
24 CFR Part 901
Administrative practice and procedure, Public housing, Reporting
and recordkeeping requirements.
24 CFR Part 906
Grant programs--housing and community development, Low and moderate
income housing, Public housing, Reporting and recordkeeping
requirements.
24 CFR Part 941
Grant programs--housing and community development, Loan programs--
housing and community development, Public housing, Reporting and
recordkeeping requirements.
[[Page 50201]]
24 CFR Part 965
Energy conservation, Government procurement, Grant programs--
housing and community development, Lead poisoning, Loan programs--
housing and community development, Public housing, Reporting and
recordkeeping requirements, Utilities.
24 CFR Part 968
Grant programs--housing and community development, Indians, Loan
programs--housing and community development, Public housing, Reporting
and recordkeeping requirements.
24 CFR Part 970
Grant programs--housing and community development, Public housing,
Reporting and recordkeeping requirements.
24 CFR Part 982
Grant programs--housing and community development, Housing, Rent
subsidies, Reporting and recordkeeping requirements.
24 CFR Part 983
Grant programs--housing and community development, Rent subsidies,
Reporting and recordkeeping requirements.
24 CFR Part 1000
Aged, Community development block grants, Grant programs--housing
and community development, Grant programs--Indians, Indians,
Individuals with disabilities, Low and moderate income housing, Public
housing, Reporting and recordkeeping requirements.
24 CFR Part 1003
Alaska, Community development block grants, Grant programs--housing
and community development, Indians, Reporting and recordkeeping
requirements.
24 CFR Part 1005
Indians, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, HUD is amending title 24
of the Code of Federal Regulations as follows:
PART 35--LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN
RESIDENTIAL STRUCTURES
1. The authority citation for 24 CFR part 35 is revised to read as
follows:
Authority: 42 U.S.C. 3535(d), 4821, and 4851.
2. Remove Subpart A and redesignate subpart H, consisting of
Secs. 35.80 through 35.98, as subpart A, consisting of Secs. 35.1
through 35.19. The table of contents to redesignated subpart A is
revised to read as follows:
Subpart A--Disclosure of Known Lead-Based Paint Hazards Upon Sale or
Lease of Residential Property
Sec.
35.1 Purpose.
35.3 Scope and applicability.
35.5 Effective dates.
35.7 Definitions.
35.9 Disclosure requirements for sellers and lessors.
35.11 Opportunity to conduct an evaluation.
35.13 Certification and acknowledgement of disclosure.
35.15 Agent responsibilities.
35.17 Enforcement.
35.19 Impact on State and local requirements.
3. Revise subparts B through G and add subparts H through R to read
as follows:
Subpart B--General Lead-Based Paint Requirements and Definitions for
All Programs
35.100 Purpose and applicability.
35.105 Effective dates.
35.106 Information collection requirements.
35.110 Definitions.
35.115 Exemptions.
35.120 Options.
35.125 Notice of evaluation and hazard reduction activities.
35.130 Lead hazard information pamphlet.
35.135 Use of paint containing lead.
35.140 Prohibited methods of paint removal.
35.145 Compliance with Federal laws and authorities.
35.150 Compliance with other State, tribal, and local laws.
35.155 Minimum requirements.
35.160 Waivers.
35.165 Prior evaluation or hazard reduction.
35.170 Noncompliance with the requirements of subparts B through R.
35.175 Records
Subpart C--Disposition of Residential Property Owned by a Federal
Agency Other Than HUD
35.200 Purpose and applicability.
35.205 Definitions and other general requirements.
35.210 Disposition of residential property constructed before 1960.
35.215 Disposition of residential property constructed after 1959
and before 1978.
Subpart D--Project-Based Assistance Provided by a Federal Agency Other
Than HUD
35.300 Purpose and applicability.
35.305 Definitions and other general requirements.
35.310 Notices and pamphlet.
35.315 Risk assessments.
35.320 Hazard reduction.
35.325 Child with an environmental intervention blood lead level.
Subpart E [Reserved]
Subpart F--HUD-Owned Single Family Property
35.500 Purpose and applicability.
35.505 Definitions and other general requirements.
35.510 Required procedures.
Subpart G--Multifamily Mortgage Insurance
35.600 Purpose and applicability.
35.605 Definitions and other general requirements.
35.610 Exemption.
35.615 Notices and pamphlet.
35.620 Multifamily insured property constructed before 1960.
35.625 Multifamily Insured Property constructed after 1959 and
before 1978.
35.630 Conversions and Major Rehabilitations
Subpart H--Project-Based Rental Assistance
35.700 Purpose and applicability.
35.705 Definitions and other general requirements.
35.710 Notices and pamphlet.
35.715 Multifamily properties receiving more than $5,000 per unit.
35.720 Multifamily properties receiving up to $5,000 per unit, and
single-family properties.
35.725 Section 8 rent adjustments.
35.730 Child with an environmental intervention blood lead level.
Subpart I--HUD-Owned and Mortgagee-in-Possession Multifamily Property.
35.800 Purpose and applicability.
35.805 Definitions and other general requirements.
35.810 Notices and pamphlet.
35.815 Evaluation.
35.820 Interim controls.
35.825 Ongoing lead-based paint maintenance and reevaluation.
35.830 Child with an environmental intervention blood lead level.
Subpart J--Rehabilitation
35.900 Purpose and applicability.
35.905 Definitions and other general requirements.
35.910 Notices and pamphlet.
35.915 Calculating rehabilitation costs, except for the CILP
program.
35.920 Calculating rehabilitation costs for the Flexible-Subsidy--
CILP Program.
35.925 Examples of determining applicable requirements.
35.930 Evaluation and hazard reduction requirements.
35.935 Ongoing lead-based paint maintenance activities.
35.940 Special requirements for insular areas.
Subpart K--Acquisition, Leasing, Support Services, or Operation.
35.1000 Purpose and applicability.
35.1005 Definitions and other general requirements.
35.1010 Notices and pamphlet.
35.1015 Visual assessment, paint stabilization, and maintenance.
[[Page 50202]]
35.1020 Funding for evaluation and hazard reduction.
Subpart L--Public Housing Programs
35.1100 Purpose and applicability.
35.1105 Definitions and other general requirements.
35.1110 Notices and pamphlet.
35.1115 Evaluation.
35.1120 Hazard reduction.
35.1125 Evaluation and hazard reduction before acquisition and
development.
35.1130 Child with an environmental intervention blood lead level.
35.1135 Eligible costs.
35.1140 Insurance coverage
Subpart M--Tenant-Based Rental Assistance
35.1200 Purpose and applicability.
35.1205 Definitions and other general requirements.
35.1210 Notices and pamphlet.
35.1215 Activities at initial and periodic inspections.
35.1220 Ongoing lead-based paint maintenance activities
35.1225 Child with an environmental intervention blood lead level.
Subparts N-Q [Reserved]
Subpart R--Methods and Standards for Lead-Based Paint Hazard Evaluation
and Hazard Reduction Activities.
35.1300 Purpose and applicability
35.1305 Definitions and other general requirements.
35.1310 References.
35.1315 Collection and laboratory analysis of samples.
35.1320 Lead-based paint inspections and risk assessments.
35.1325 Abatement.
35.1330 Interim controls.
35.1335 Standard treatments.
35.1340 Clearance.
35.1345 Occupant protection and worksite preparation
35.1350 Safe work practices.
35.1355 Ongoing lead-based paint maintenance and reevaluation
activities.
Subpart B--General Lead-Based Paint Requirements and Definitions
for All Programs.
Sec. 35.100 Purpose and applicability.
(a) Purpose. The requirements of subparts B through R of this part
are promulgated to implement the Lead-Based Paint Poisoning Prevention
Act, as amended (42 U.S.C. 4821 et seq.), and the Residential Lead-
Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851 et seq.).
(b) Applicability.--(1) This subpart. This subpart applies to all
target housing that is federally owned and target housing receiving
Federal assistance to which subparts C, D, F through M, and R of this
part apply, except where indicated.
(2) Other subparts.--(i) General. Subparts C, D, and F through M of
this part each set forth requirements for a specific type of Federal
housing activity or assistance, such as multifamily mortgage insurance,
project-based rental assistance, rehabilitation, or tenant-based rental
assistance. Subpart R of this part provides standards and methods for
activities required in subparts B, C, D, and F through M of this part.
(ii) Application to programs. Most HUD housing programs are covered
by only one subpart of this part, but some programs can be used for
more than one type of assistance and therefore are covered by more than
one subpart of this part. A current list of programs covered by each
subpart of this part is available on the internet at www.hud.gov, or by
mail from the National Lead Information Center at 1-800-424-LEAD.
Examples of flexible programs that can provide more than one type of
assistance are the HOME Investment Partnerships program, the Community
Development Block Grant program, and the Indian Housing Block Grant
Program. Grantees, participating jurisdictions, Indian tribes and other
entities administering such flexible programs must decide which subpart
applies to the type of assistance being provided to a particular
dwelling unit or residential property.
(iii) Application to dwelling units. In some cases, more than one
type of assistance may be provided to the same dwelling unit. In such
cases, the subpart or section with the most protective initial hazard
reduction requirements applies. Paragraph (c) of this section provides
a table that lists the subparts and sections of this part in order from
the most protective to the least protective. (This list is based only
on the requirements for initial hazard reduction. The summary of
requirements on this list is not a complete list of requirements. It is
necessary to refer to the applicable subparts and sections to determine
all applicable requirements.)
(iv) Example. A multifamily building has 100 dwelling units and was
built in 1965. The property is financed with HUD multifamily mortgage
insurance. This building is covered by subpart G of this part (see
Sec. 35.625--Multifamily mortgage insurance for properties constructed
after 1959), which is at protectiveness level 5 in the table set forth
in paragraph (c) of this section. In the same building, however, 50 of
the 100 dwelling units are receiving project-based assistance, and the
average annual assistance per assisted unit is $5,500. Those 50 units,
and common areas servicing those units, are covered by the requirements
of subpart H of this part (see Sec. 35.715--Project-based assistance
for multifamily properties receiving more than $5,000 per unit), which
are at protectiveness level 3. Therefore, because level 3 is a higher
level of protectiveness than level 5, the units receiving project-based
assistance, and common areas servicing those units, must comply at
level 3, while the rest of the building can be operated at level 5. The
owner may choose to operate the entire building at level 3 for
simplicity.
(c) Table One. The following table lists the subparts and sections
of this part applying to HUD programs in order from most protective to
least protective hazard reduction requirements. The summary of hazard
reduction requirements in this table is not complete. Readers must
refer to relevant subpart for complete requirements.
----------------------------------------------------------------------------------------------------------------
Hazard reduction
Level of protection Subpart, section, and type of assistance requirements
----------------------------------------------------------------------------------------------------------------
1.............................. Subpart L, Public housing. Subpart G, Sec. 35.630, Full abatement of lead-
Multifamily mortgage insurance for conversions and based paint.
major rehabilitations.
2.............................. Subpart J, Sec. 35.930(d), Properties receiving Abatement of lead-based
more than $25,000 per unit in rehabilitation paint hazards.
assistance.
3.............................. Subpart G, Sec. 35.620, Multifamily mortgage Interim controls.
insurance for properties constructed before 1960,
other than conversions and major rehabilitations.
Subpart H, Sec. 35.715, Project-based assistance
for multifamily properties receiving more than
$5,000 per unit. Subpart I, HUD-owned multifamily
property. Subpart J, Sec. 35.930(c), Properties
receiving more than $5,000 and up to $25,000 per
unit in rehabilitation assistance.
4.............................. Subpart F, HUD-owned single family properties. Paint stabilization.
Subpart H, Sec. 35.720, Project-based rental
assistance for multifamily properties receiving up
to $5,000 per unit and single family properties.
Subpart K, Acquisition, leasing, support services,
or operation. Subpart M, Tenant-based rental
assistance.
[[Page 50203]]
5.............................. Subpart G, Sec. 35.625, Multifamily mortgage Ongoing lead-based paint
insurance for properties constructed after 1959. maintenance.
6.............................. Subpart J, Sec. 35.930(b), Properties receiving up Safe work practices during
to and including $5,000 in rehabilitation rehabilitation.
assistance.
----------------------------------------------------------------------------------------------------------------
Sec. 35.105 Effective dates.
The effective date for subparts B through R of this part is
September 15, 2000, except that the effective date for prohibited
methods of paint removal, described in Sec. 35.140, is November 15,
1999. Subparts F through M of this part provide further information on
the application of the effective date to specific programs. Before
September 15, 2000, a designated party has the option of following the
procedures in subparts B through R of this part, or complying with
current HUD lead-based paint regulations.
Sec. 35.106 Information collection requirements.
The information collection requirements contained in this part have
been approved by the Office of Management and Budget (OMB) in
accordance with the requirements of the Paperwork Reduction Act of 1995
(44 U.S.C. 2501-3520), and have been assigned OMB control number 2539-
0009. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless the
collection displays a valid control number.
Sec. 35.110 Definitions.
Abatement means any set of measures designed to permanently
eliminate lead-based paint or lead-based paint hazards (see definition
of ``permanent''). Abatement includes:
(1) The removal of lead-based paint and dust-lead hazards, the
permanent enclosure or encapsulation of lead-based paint, the
replacement of components or fixtures painted with lead-based paint,
and the removal or permanent covering of soil-lead hazards; and
(2) All preparation, cleanup, disposal, and post abatement
clearance testing activities associated with such measures.
Act means the Lead-Based Paint Poisoning Prevention Act, as
amended, 42 U.S.C. 4822 et seq.
Bare soil means soil or sand not covered by grass, sod, other live
ground covers, wood chips, gravel, artificial turf, or similar
covering.
Certified means licensed or certified to perform such activities as
risk assessment, lead-based paint inspection, or abatement supervision,
either by a State or Indian tribe with a lead-based paint certification
program authorized by the Environmental Protection Agency (EPA), or by
the EPA, in accordance with 40 CFR part 745, subparts L or Q.
Chewable surface means an interior or exterior surface painted with
lead-based paint that a young child can mouth or chew. A chewable
surface is the same as an ``accessible surface'' as defined in 42
U.S.C. 4851b(2)). Hard metal substrates and other materials that cannot
be dented by the bite of a young child are not considered chewable.
Clearance examination means an activity conducted following lead-
based paint hazard reduction activities to determine that the hazard
reduction activities are complete and that no soil-lead hazards or
settled dust-lead hazards, as defined in this part, exist in the
dwelling unit or worksite. The clearance process includes a visual
assessment and collection and analysis of environmental samples. Dust-
lead standards for clearance are found at Sec. 35.1320.
CILP recipient means an owner of a multifamily property which is
undergoing rehabilitation funded by the Flexible Subsidy-Capital
Improvement Loan Program (CILP).
Common area means a portion of a residential property that is
available for use by occupants of more than one dwelling unit. Such an
area may include, but is not limited to, hallways, stairways, laundry
and recreational rooms, playgrounds, community centers, on-site day
care facilities, garages and boundary fences.
Component means an architectural element of a dwelling unit or
common area identified by type and location, such as a bedroom wall, an
exterior window sill, a baseboard in a living room, a kitchen floor, an
interior window sill in a bathroom, a porch floor, stair treads in a
common stairwell, or an exterior wall.
Composite sample means a collection of more than one sample of the
same medium (e.g., dust, soil or paint) from the same type of surface
(e.g., floor, interior window sill, or window trough), such that
multiple samples can be analyzed as a single sample.
Containment means the physical measures taken to ensure that dust
and debris created or released during lead-based paint hazard reduction
are not spread, blown or tracked from inside to outside of the
worksite.
Designated party means a Federal agency, grantee, subrecipient,
participating jurisdiction, housing agency, CILP recipient, Indian
tribe, tribally designated housing entity (TDHE), sponsor or property
owner responsible for complying with applicable requirements.
Deteriorated paint means any interior or exterior paint or other
coating that is peeling, chipping, chalking or cracking, or any paint
or coating located on an interior or exterior surface or fixture that
is otherwise damaged or separated from the substrate.
Dry sanding means sanding without moisture and includes both hand
and machine sanding.
Dust-lead hazard means surface dust that contains a dust-lead
loading (area concentration of lead) at or exceeding the levels
promulgated by the EPA pursuant to section 403 of the Toxic Substances
Control Act or, if such levels are not in effect, the standards in
Sec. 35.1320.
Dwelling unit means a:
(1) Single-family dwelling, including attached structures such as
porches and stoops; or
(2) Housing unit in a structure that contains more than 1 separate
housing unit, and in which each such unit is used or occupied, or
intended to be used or occupied, in whole or in part, as the home or
separate living quarters of 1 or more persons.
Encapsulation means the application of a covering or coating that
acts as a barrier between the lead-based paint and the environment and
that relies for its durability on adhesion between the encapsulant and
the painted surface, and on the integrity of the existing bonds between
paint layers and between the paint and the substrate. Encapsulation may
be used as a method of abatement if it is designed and performed so as
to be permanent (see definition of ``permanent'').
Enclosure means the use of rigid, durable construction materials
that are mechanically fastened to the substrate in order to act as a
barrier between lead-based paint and the environment. Enclosure may be
used as a method of
[[Page 50204]]
abatement if it is designed to be permanent (see definition of
``permanent'').
Environmental intervention blood lead level means a confirmed
concentration of lead in whole blood equal to or greater than 20
g/dL (micrograms of lead per deciliter) for a single test or
15-19 g/dL in two tests taken at least 3 months apart.
Evaluation means a risk assessment, a lead hazard screen, a lead-
based paint inspection, paint testing, or a combination of these to
determine the presence of lead-based paint hazards or lead-based paint.
Expected to reside means there is actual knowledge that a child
will reside in a dwelling unit reserved for the elderly or designated
exclusively for persons with disabilities. If a resident woman is known
to be pregnant, there is actual knowledge that a child will reside in
the dwelling unit.
Federal agency means the United States or any executive department,
independent establishment, administrative agency and instrumentality of
the United States, including a corporation in which all or a
substantial amount of the stock is beneficially owned by the United
States or by any of these entities. The term ``Federal agency''
includes, but is not limited to, Rural Housing Service (formerly Rural
Housing and Community Development Service that was formerly Farmer's
Home Administration), Resolution Trust Corporation, General Services
Administration, Department of Defense, Department of Veterans Affairs,
Department of the Interior, and Department of Transportation.
Federally owned property means residential property owned or
managed by a Federal agency, or for which a Federal agency is a trustee
or conservator.
Firm commitment means a valid commitment issued by HUD or the
Federal Housing Commissioner setting forth the terms and conditions
upon which a mortgage will be insured or guaranteed.
Friction surface means an interior or exterior surface that is
subject to abrasion or friction, including, but not limited to, certain
window, floor, and stair surfaces.
g means gram, mg means milligram (thousandth of a gram), and
g means microgram (millionth of a gram).
Grantee means any State or local government, Indian tribe, IHBG
recipient, insular area or nonprofit organization that has been
designated by HUD to administer Federal housing assistance under a
program covered by subparts J and K of this part, except the HOME
program or the Flexible Subsidy-Capital Improvement Loan Program
(CILP).
Hard costs of rehabilitation means:
(1) Costs to correct substandard conditions or to meet applicable
local rehabilitation standards;
(2) Costs to make essential improvements, including energy-related
repairs, and those necessary to permit use by persons with
disabilities; and costs to repair or replace major housing systems in
danger of failure; and
(3) Costs of non-essential improvements, including additions and
alterations to an existing structure; but
(4) Hard costs do not include administrative costs (e.g., overhead
for administering a rehabilitation program, processing fees, etc.).
Hazard reduction means measures designed to reduce or eliminate
human exposure to lead-based paint hazards through methods including
interim controls or abatement or a combination of the two.
HEPA vacuum means a vacuum cleaner device with an included high-
efficiency particulate air (HEPA) filter through which the contaminated
air flows, operated in accordance with the instructions of its
manufacturer. A HEPA filter is one that captures at least 99.97 percent
of airborne particles of at least 0.3 micrometers in diameter.
Housing for the elderly means retirement communities or similar
types of housing reserved for households composed of one or more
persons 62 years of age or more, or other age if recognized as elderly
by a specific Federal housing assistance program.
Housing receiving Federal assistance means housing which is covered
by an application for HUD mortgage insurance, receives housing
assistance payments under a program administered by HUD, or otherwise
receives more than $5,000 in project-based assistance under a Federal
housing program administered by an agency other than HUD.
HUD means the United States Department of Housing and Urban
Development.
HUD-owned property means residential property owned or managed by
HUD, or for which HUD is a trustee or conservator.
Impact surface means an interior or exterior surface that is
subject to damage by repeated sudden force, such as certain parts of
door frames.
Indian Housing Block Grant (IHBG) recipient means a tribe or a
tribally designated housing entity (TDHE) receiving IHBG funds.
Indian tribe means a tribe as defined in the Native American
Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101
et seq.)
Inspection (See Lead-based paint inspection).
Insular areas means Guam, the Northern Mariana Islands, the United
States Virgin Islands and American Samoa.
Interim controls means a set of measures designed to reduce
temporarily human exposure or likely exposure to lead-based paint
hazards. Interim controls include, but are not limited to, repairs,
painting, temporary containment, specialized cleaning, clearance,
ongoing lead-based paint maintenance activities, and the establishment
and operation of management and resident education programs.
Interior window sill means the portion of the horizontal window
ledge that protrudes into the interior of the room, adjacent to the
window sash when the window is closed. The interior window sill is
sometimes referred to as the window stool.
Lead-based paint means paint or other surface coatings that contain
lead equal to or exceeding 1.0 milligram per square centimeter or 0.5
percent by weight or 5,000 parts per million (ppm) by weight.
Lead-based paint hazard means any condition that causes exposure to
lead from dust-lead hazards, soil-lead hazards, or lead-based paint
that is deteriorated or present in chewable surfaces, friction
surfaces, or impact surfaces, and that would result in adverse human
health effects.
Lead-based paint inspection means a surface-by-surface
investigation to determine the presence of lead-based paint and the
provision of a report explaining the results of the investigation.
Lead hazard screen means a limited risk assessment activity that
involves paint testing and dust sampling and analysis as described in
40 CFR 745.227(c) and soil sampling and analysis as described in 40 CFR
745.227(d).
Mortgagee means a lender of a mortgage loan.
Mortgagor means a borrower of a mortgage loan.
Multifamily property means a residential property containing five
or more dwelling units.
Occupant means a person who inhabits a dwelling unit.
Owner means a person, firm, corporation, nonprofit organization,
partnership, government, guardian, conservator, receiver, trustee,
executor,
[[Page 50205]]
or other judicial officer, or other entity which, alone or with others,
owns, holds, or controls the freehold or leasehold title or part of the
title to property, with or without actually possessing it. The
definition includes a vendee who possesses the title, but does not
include a mortgagee or an owner of a reversionary interest under a
ground rent lease.
Paint stabilization means repairing any physical defect in the
substrate of a painted surface that is causing paint deterioration,
removing loose paint and other material from the surface to be treated,
and applying a new protective coating or paint.
Paint testing means the process of determining, by a certified
lead-based paint inspector or risk assessor, the presence or the
absence of lead-based paint on deteriorated paint surfaces or painted
surfaces to be disturbed or replaced.
Paint removal means a method of abatement that permanently
eliminates lead-based paint from surfaces.
Painted surface to be disturbed means a paint surface that is to be
scraped, sanded, cut, penetrated or otherwise affected by
rehabilitation work in a manner that could potentially create a lead-
based paint hazard by generating dust, fumes, or paint chips.
Participating jurisdiction means any State or local government that
has been designated by HUD to administer a HOME program grant.
Permanent means an expected design life of at least 20 years.
Play area means an area of frequent soil contact by children of
less than 6 years of age, as indicated by the presence of play
equipment (e.g. sandboxes, swing sets, sliding boards, etc.) or toys or
other children's possessions, observations of play patterns, or
information provided by parents, residents or property owners.
Project-based rental assistance means Federal rental assistance
that is tied to a residential property with a specific location and
remains with that particular location throughout the term of the
assistance.
Public health department means a State, tribal, county or municipal
public health department or the Indian Health Service.
Public housing development means a residential property assisted
under the United States Housing Act of 1937 (42 U.S.C. 1437 et seq.),
but not including housing assisted under section 8 of the 1937 Act.
Reevaluation means a visual assessment of painted surfaces and
limited dust and soil sampling conducted periodically following lead-
based paint hazard reduction where lead-based paint is still present.
Rehabilitation means the improvement of an existing structure
through alterations, incidental additions or enhancements.
Rehabilitation includes repairs necessary to correct the results of
deferred maintenance, the replacement of principal fixtures and
components, improvements to increase the efficient use of energy, and
installation of security devices.
Replacement means a strategy of abatement that entails the removal
of building components that have surfaces coated with lead-based paint
and the installation of new components free of lead-based paint.
Residential property means a dwelling unit, common areas, building
exterior surfaces, and any surrounding land, including outbuildings,
fences and play equipment affixed to the land, belonging to an owner
and available for use by residents, but not including land used for
agricultural, commercial, industrial or other non-residential purposes,
and not including paint on the pavement of parking lots, garages, or
roadways.
Risk assessment means:
(1) An on-site investigation to determine the existence, nature,
severity, and location of lead-based paint hazards; and
(2) The provision of a report by the individual or firm conducting
the risk assessment explaining the results of the investigation and
options for reducing lead-based paint hazards.
Single family property means a residential property containing one
through four dwelling units.
Single room occupancy (SRO) housing means housing consisting of
zero-bedroom dwelling units that may contain food preparation or
sanitary facilities or both (see Zero-bedroom dwelling).
Soil-lead hazard means bare soil on residential property that
contains lead equal to or exceeding levels promulgated by the U.S.
Environmental Protection Agency pursuant to section 403 of the Toxic
Substances Control Act or, if such levels are not in effect, the
following levels: 400 g/g in play areas; and 2000 g/g
in other areas with bare soil that total more than 9 square feet (0.8
square meters) per residential property.
Sponsor means mortgagor (borrower).
Subrecipient means any nonprofit organization selected by the
grantee or participating jurisdiction to administer all or a portion of
the Federal rehabilitation assistance or other non-rehabilitation
assistance, or any such organization selected by a subrecipient of the
grantee or participating jurisdiction. An owner or developer receiving
Federal rehabilitation assistance or other assistance for a residential
property is not considered a subrecipient for the purposes of carrying
out that project.
Standard treatments means a series of hazard reduction measures
designed to reduce all lead-based paint hazards in a dwelling unit
without the benefit of a risk assessment or other evaluation.
Substrate means the material directly beneath the painted surface
out of which the components are constructed, including wood, drywall,
plaster, concrete, brick or metal.
Target housing means any housing constructed prior to 1978, except
housing for the elderly or persons with disabilities (unless a child of
less than 6 years of age resides or is expected to reside in such
housing for the elderly or persons with disabilities) or any zero-
bedroom dwelling. In the case of jurisdictions which banned the sale or
use of lead-based paint prior to 1978, HUD may designate an earlier
date.
Tenant means the individual named as the lessee in a lease, rental
agreement or occupancy agreement for a dwelling unit.
Visual assessment means looking for, as applicable:
(1) Deteriorated paint;
(2) Visible surface dust, debris and residue as part of a risk
assessment or clearance examination; or
(3) The completion or failure of a hazard reduction measure.
Wet sanding or wet scraping means a process of removing loose paint
in which the painted surface to be sanded or scraped is kept wet to
minimize the dispersal of paint chips and airborne dust.
Window trough means the area between the interior window sill
(stool) and the storm window frame. If there is no storm window, the
window trough is the area that receives both the upper and lower window
sashes when they are both lowered.
Worksite means an interior or exterior area where lead-based paint
hazard reduction activity takes place. There may be more than one
worksite in a dwelling unit or at a residential property.
Zero-bedroom dwelling means any residential dwelling in which the
living areas are not separated from the sleeping area. The term
includes efficiencies, studio apartments, dormitory or single room
occupancy housing, military barracks, and rentals of individual rooms
in residential dwellings (see Single room occupancy (SRO)).
[[Page 50206]]
Sec. 35.115 Exemptions.
(a) Subparts B through R of this part do not apply to the
following:
(1) A residential property for which construction was completed on
or after January 1, 1978, or, in the case of jurisdictions which banned
the sale or residential use of lead-containing paint prior to 1978, an
earlier date as HUD may designate (see Sec. 35.160).
(2) A zero-bedroom dwelling unit, including a single room occupancy
(SRO) dwelling unit.
(3) Housing for the elderly, or a residential property designated
exclusively for persons with disabilities; except this exemption shall
not apply if a child less than age 6 resides or is expected to reside
in the dwelling unit (see definitions of ``housing for the elderly''
and ``expected to reside'' in Sec. 35.110).
(4) Residential property found not to have lead-based paint by a
lead-based paint inspection conducted in accordance with
Sec. 35.1320(a) (for more information regarding inspection procedures
consult the 1997 edition of Chapter 7 of the HUD Guidelines). Results
of additional test(s) by a certified lead-based paint inspector may be
used to confirm or refute a prior finding.
(5) Residential property in which all lead-based paint has been
identified, removed, and clearance has been achieved in accordance with
40 CFR 745.227(b)(e) before September 15, 2000, or in accordance with
Secs. 35.1320, 35.1325 and 35.1340 on or after September 15, 2000. This
exemption does not apply to residential property where enclosure or
encapsulation has been used as a method of abatement.
(6) An unoccupied dwelling unit or residential property that is to
be demolished, provided the dwelling unit or property will remain
unoccupied until demolition.
(7) A property or part of a property that is not used and will not
be used for human residential habitation, except that spaces such as
entryways, hallways, corridors, passageways or stairways serving both
residential and nonresidential uses in a mixed-use property shall not
be exempt.
(8) Any rehabilitation that does not disturb a painted surface.
(9) For emergency actions immediately necessary to safeguard
against imminent danger to human life, health or safety, or to protect
property from further structural damage (such as when a property has
been damaged by a natural disaster, fire, or structural collapse),
occupants shall be protected from exposure to lead in dust and debris
generated by such emergency actions to the extent practicable, and the
requirements of subparts B through R of this part shall not apply. This
exemption applies only to repairs necessary to respond to the
emergency. The requirements of subparts B through R of this part shall
apply to any work undertaken subsequent to, or above and beyond, such
emergency actions.
(10) If a Federal law enforcement agency has seized a residential
property and owns the property for less than 270 days, Secs. 35.210 and
35.215 shall not apply to the property.
(11) The requirements of subpart K of this part do not apply if the
assistance being provided is emergency rental assistance or foreclosure
prevention assistance, provided that this exemption shall expire for a
dwelling unit no later than 100 days after the initial payment or
assistance.
(12) Performance of an evaluation or lead-based paint hazard
reduction or lead-based paint abatement on an exterior painted surface
as required under this part may be delayed for a reasonable time during
a period when weather conditions are unsuitable for conventional
construction activities.
(13) Where abatement of lead-based paint hazards or lead-based
paint is required by this part and the property is listed or has been
determined to be eligible for listing in the National Register of
Historic Places or contributing to a National Register Historic
District, the designated party may, if requested by the State Historic
Preservation Office, conduct interim controls in accordance with
Sec. 35.1330 instead of abatement. If interim controls are conducted,
ongoing lead-based paint maintenance and reevaluation shall be
conducted as required by the applicable subpart of this part in
accordance with Sec. 35.1355.
(b) For the purposes of subpart C of this part, each Federal agency
other than HUD will determine whether appropriations are sufficient to
implement this rule. If appropriations are not sufficient, subpart C of
this part shall not apply to that Federal agency. If appropriations are
sufficient, subpart C of this part shall apply.
Sec. 35.120 Options.
(a) Standard treatments. Where interim controls are required by
this part, the designated party has the option to presume that lead-
based paint or lead-based paint hazards or both are present throughout
the residential property. In such a case, evaluation is not required.
Standard treatments shall then be conducted in accordance with
Sec. 35.1335 on all applicable surfaces, including soil. Standard
treatments are completed only when clearance is achieved in accordance
with Sec. 35.1340.
(b) Abatement. Where abatement is required by this part, the
designated party may presume that lead-based paint or lead-based paint
hazards or both are present throughout the residential property. In
such a case, evaluation is not required. Abatement shall then be
conducted on all applicable surfaces, including soil, in accordance
with Sec. 35.1325, and completed when clearance is achieved in
accordance with Sec. 35.1340. This option is not available in public
housing, where inspection is required.
(c) Lead hazard screen. Where a risk assessment is required, the
designated party may choose first to conduct a lead hazard screen in
accordance with Sec. 35.1320(b). If the results of the lead hazard
screen indicate the need for a full risk assessment (e.g., if the
environmental measurements exceed levels established for lead hazard
screens in Sec. 35.1320(b)(2)), a complete risk assessment shall be
conducted. Environmental samples collected for the lead hazard screen
may be used in the risk assessment. If the results of the lead hazard
screen do not indicate the need for a follow-up risk assessment, a risk
assessment is not required.
(d) Paint testing. Where paint stabilization or interim controls of
deteriorated paint surfaces are required by this rule, the designated
party has the option to conduct paint testing of all surfaces with non-
intact paint. If paint testing indicates the absence of lead-based
paint on a specific surface, paint stabilization or interim controls
are not required on that surface.
Sec. 35.125 Notice of evaluation and hazard reduction activities.
The following activities shall be conducted if notice is required
by subparts D and F through M of this part.
(a) Notice of evaluation or presumption. When evaluation is
undertaken and lead-based paint or lead-based paint hazards are found
to be present, or if a presumption is made that lead-based paint or
lead-based paint hazards are present in accordance with the options
described in Sec. 35.120, the designated party shall provide a notice
to occupants within 15 calendar days of the date when the designated
party receives the report or makes the presumption.
(1) The notice of the evaluation shall include:
(i) A summary of the nature, scope and results of the evaluation;
(ii) A contact name, address and telephone number for more
information,
[[Page 50207]]
and to obtain access to the actual evaluation report; and
(iii) The date of the notice.
(2) The notice of presumption shall include:
(i) The nature and scope of the presumption;
(ii) A contact name, address and telephone number for more
information; and
(iii) The date of the notice.
(b) Notice of hazard reduction activity. When hazard reduction
activities are undertaken, each designated party shall:
(1) Provide a notice to occupants no more than 15 calendar days
after the hazard reduction activities have been completed. Notice of
hazard reduction shall include, but not be limited to:
(i) A summary of the nature, scope and results (including
clearance), of the hazard reduction activities.
(ii) A contact name, address and telephone number for more
information; and
(iii) Available information on the location of any remaining lead-
based paint in the rooms, spaces or areas where hazard reduction
activities were conducted, on a surface-by-surface basis;
(2) Update the notice, based on reevaluation of the residential
property and as any additional hazard reduction work is conducted.
(c) Availability of notices of evaluation, presumption, and hazard
reduction activities. (1) The notices of evaluation, presumption, and
hazard reduction shall be of a size and type that is easily read by
occupants.
(2) To the extent practicable, each notice shall be made available,
upon request, in a format accessible to persons with disabilities
(e.g., Braille, large type, computer disk, audio tape).
(3) Each notice shall be provided in the occupants' primary
language or in the language of the occupants' contract or lease.
(4) The designated party shall provide each notice to the occupants
by:
(i) Posting and maintaining it in centrally located common areas
and distributing it to any dwelling unit if necessary because the head
of household is a person with a known disability; or
(ii) Distributing it to each occupied dwelling unit affected by the
evaluation, presumption, or hazard reduction activity or serviced by
common areas in which an evaluation, presumption or hazard reduction
has taken place.
Sec. 35.130 Lead hazard information pamphlet.
If provision of a lead hazard information pamphlet is required in
subparts D and F through M of this part, the designated party shall
provide to each occupied dwelling unit to which subparts D and F
through M of this part apply, the lead hazard information pamphlet
developed by EPA, HUD and the Consumer Product Safety Commission
pursuant to section 406 of the Toxic Substances Control Act (15 U.S.C.
2686), or an EPA-approved alternative; except that the designated party
need not provide a lead hazard information pamphlet if the designated
party can demonstrate that the pamphlet has already been provided in
accordance with the lead-based paint notification and disclosure
requirements at Sec. 35.88(a)(1), or 40 CFR 745.107(a)(1) or in
accordance with the requirements for hazard education before renovation
at 40 CFR part 745, subpart E.
Sec. 35.135 Use of paint containing lead.
(a) New use prohibition. The use of paint containing more than 0.06
percent dry weight of lead on any interior or exterior surface in
federally owned housing or housing receiving Federal assistance is
prohibited. As appropriate, each Federal agency shall include the
prohibition in contracts, grants, cooperative agreements, insurance
agreements, guaranty agreements, trust agreements, or other similar
documents.
(b) Pre-1978 prohibition. In the case of a jurisdiction which
banned the sale or residential use of lead-containing paint before
1978, HUD may designate an earlier date for certain provisions of
subparts D and F through M of this part.
Sec. 35.140 Prohibited methods of paint removal.
The following methods shall not be used to remove paint that is, or
may be, lead-based paint:
(a) Open flame burning or torching.
(b) Machine sanding or grinding without a high-efficiency
particulate air (HEPA) local exhaust control.
(c) Abrasive blasting or sandblasting without HEPA local exhaust
control.
(d) Heat guns operating above 1100 degrees Fahrenheit or charring
the paint.
(e) Dry sanding or dry scraping, except dry scraping in conjunction
with heat guns or within 1.0 ft. (0.30 m.) of electrical outlets, or
when treating defective paint spots totaling no more than 2 sq. ft.
(0.2 sq. m.) in any one interior room or space, or totaling no more
than 20 sq. ft. (2.0 sq. m.) on exterior surfaces.
(f) Paint stripping in a poorly ventilated space using a volatile
stripper that is a hazardous substance in accordance with regulations
of the Consumer Product Safety Commission at 16 CFR 1500.3, and/or a
hazardous chemical in accordance with the Occupational Safety and
Health Administration regulations at 29 CFR 1910.1200 or 1926.59, as
applicable to the work.
Sec. 35.145 Compliance with Federal laws and authorities.
All lead-based paint activities, including waste disposal,
performed under this part shall be performed in accordance with
applicable Federal laws and authorities. For example, such activities
are subject to the applicable environmental review requirements of the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), the
Toxic Substances Control Act, Title IV (15 U.S.C. 2860 et seq.), and
other environmental laws and authorities (see, e.g., laws and
authorities listed in Sec. 50.4 of this title).
Sec. 35.150 Compliance with other State, tribal, and local laws.
(a) HUD responsibility. If HUD determines that a State, tribal or
local law, ordinance, code or regulation provides for evaluation or
hazard reduction in a manner that provides a comparable level of
protection from the hazards of lead-based paint poisoning to that
provided by the requirements of subparts B, C, D, F through M and R of
this part and that adherence to the requirements of subparts B, C, D, F
through M, and R of this part, would be duplicative or otherwise cause
inefficiencies, HUD may modify or waive some or all of the requirements
of the subparts in a manner that will promote efficiency while ensuring
a comparable level of protection.
(b) Participant responsibility. Nothing in this part is intended to
relieve any participant in a program covered by this subpart of any
responsibility for compliance with State, tribal or local laws,
ordinances, codes or regulations governing evaluation and hazard
reduction. If a State, tribal or local law, ordinance, code or
regulation defines lead-based paint differently than the Federal
definition, the more protective definition (i.e., the lower level)
shall be followed in that State, tribal or local jurisdiction.
Sec. 35.155 Minimum requirements.
(a) Nothing in subparts B, C, D, F through M, and R of this part is
intended to preclude a designated party or occupant from conducting
additional evaluation or hazard reduction measures beyond the minimum
requirements established for each program in this regulation. For
example, if the applicable subpart requires visual
[[Page 50208]]
assessment, the designated party may choose to perform a risk
assessment in accordance with Sec. 35.1320. Similarly, if the
applicable subpart requires interim controls, a designated party or
occupant may choose to implement abatement in accordance with
Sec. 35.1325.
(b) To the extent that assistance from any of the programs covered
by subparts B, C, D, and F through M of this part is used in
conjunction with other HUD program assistance, the most protective
requirements prevail.
Sec. 35.160 Waivers.
In accordance with Sec. 5.110 of this title, on a case-by-case
basis and upon determination of good cause, HUD may, subject to
statutory limitations, waive any provision of subparts B, C, D, F
through M, and R of this part.
Sec. 35.165 Prior evaluation or hazard reduction.
If an evaluation or hazard reduction was conducted at a residential
property or dwelling unit before the property or dwelling unit became
subject to the requirements of subparts B, C, D, F through M, and R of
this part, such an evaluation, hazard reduction or abatement meets the
requirements of subparts B, C, D, F through M, and R of this part and
need not be repeated under the following conditions:
(a) Lead-based paint inspection. (1) A lead-based paint inspection
conducted before August 30, 1999, meets the requirements of this rule
if:
(i) At the time of the inspection the lead-based paint inspector
was approved by a State or Indian tribe to perform lead-based paint
inspections. It is not necessary that the State or tribal approval
program had EPA authorization at the time of the inspection.
(ii) Notwithstanding paragraph (a)(1)(i) of this section, the
inspection was conducted and accepted as valid by a housing agency in
fulfillment of the lead-based paint inspection requirement of the
public and Indian housing program.
(2) A lead-based paint inspection conducted after August 29, 1999
must have been conducted by a certified lead-based paint inspector.
(b) Risk assessment. (1) A risk assessment must be no more than 12
months old to be considered current.
(2) A risk assessment conducted before August 30, 1999 meets the
requirements of this part if at the time of the risk assessment the
risk assessor was approved by a State or Indian tribe to perform risk
assessments. It is not necessary that the State or tribal approval
program had EPA authorization at the time of the risk assessment.
(3) A risk assessment conducted after August 29, 1999 must have
been conducted by a certified risk assessor.
(4) Paragraph (b) of this section does not apply in a case where a
risk assessment is required in response to the identification of a
child with an environmental intervention blood lead level. In such a
case, the requirements in the applicable subpart for responding to a
child with an environmental intervention blood lead level shall apply.
(c) Interim controls. If a residential property is under a program
of interim controls and ongoing lead-based paint maintenance and
reevaluation activities established pursuant to a risk assessment
conducted in accordance with paragraph (b) of this section, the interim
controls that have been conducted meet the requirements of this part if
clearance was achieved after such controls were implemented. In such a
case, the program of interim controls and ongoing activities shall be
continued in accordance with the requirements of this part.
(d) Abatement. (1) An abatement conducted before August 30, 1999
meets the requirements of this part if:
(i) At the time of the abatement the abatement supervisor was
approved by a State or Indian tribe to perform lead-based paint
abatement. It is not necessary that the State or tribal approval
program had EPA authorization at the time of the abatement.
(ii) Notwithstanding paragraph (d)(1)(i) of this section, it was
conducted and accepted by a housing agency in fulfillment of the lead-
based paint abatement requirement of the public housing program or by
an Indian housing authority (as formerly defined under the U.S. Housing
Act of 1937) in fulfillment of the lead-based paint requirement of the
Indian housing program formerly funded under the U.S. Housing Act of
1937.
(2) An abatement conducted after August 29, 1999 must have been
conducted under the supervision of a certified lead-based paint
abatement supervisor.
Sec. 35.170 Noncompliance with the requirements of subparts B through
R of this part.
(a) Monitoring and enforcement. A designated party who fails to
comply with any requirement of subparts B, C, D, F through M, and R of
this part shall be subject to the sanctions available under the
relevant Federal housing assistance or ownership program and may be
subject to other penalties authorized by law.
(b) A property owner who informs a potential purchaser or occupant
of lead-based paint or possible lead-based paint hazards in a
residential property or dwelling unit, in accordance with subpart A of
this part, is not relieved of the requirements to evaluate and reduce
lead-based paint hazards in accordance with subparts B through R of
this part as applicable.
Sec. 35.175 Records.
The designated party, as specified in subparts C, D, and F through
M of this part, shall keep a copy of each notice, evaluation, and
clearance or abatement report required by subparts C, D, and F through
M of this part for at least three years. Those records applicable to a
portion of a residential property for which ongoing lead-based paint
maintenance and/or reevaluation activities are required shall be kept
and made available for the Department's review, until at least three
years after such activities are no longer required.
Subpart C--Disposition of Residential Property Owned by a Federal
Agency Other Than HUD
Sec. 35.200 Purpose and applicability.
The purpose of this subpart C is to establish procedures to
eliminate as far as practicable lead-based paint hazards prior to the
sale of a residential property that is owned by a Federal agency other
than HUD. The requirements of this subpart apply to any residential
property offered for sale on or after September 15, 2000.
Sec. 35.205 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.210 Disposition of residential property constructed before
1960.
(a) Evaluation. The Federal agency shall conduct a risk assessment
and a lead-based paint inspection in accordance with 40 CFR 745.227
before the closing of the sale.
(b) Abatement of lead-based paint hazards. The risk assessment used
for the identification of hazards to be abated shall have been
performed no more than 12 months before the beginning of the abatement.
The Federal agency shall abate all identified lead-based paint hazards
in accordance with 40 CFR 745.227. Abatement is completed when
clearance is achieved in accordance with 40 CFR 745.227. Where
abatement of lead-based paint hazards is not completed before the
[[Page 50209]]
closing of the sale, the Federal agency shall be responsible for
assuring that abatement is carried out by the purchaser before
occupancy of the property as target housing and in accordance with 40
CFR 745.227.
Sec. 35.215 Disposition of residential property constructed after 1959
and before 1978.
The Federal agency shall conduct a risk assessment and a lead-based
paint inspection in accordance with 40 CFR 745.227. Evaluation shall be
completed before closing of the sale according to a schedule determined
by the Federal agency. The results of the risk assessment and lead-
based paint inspection shall be made available to prospective
purchasers as required in subpart A of this part.
Subpart D--Project-Based Assistance Provided by a Federal Agency
Other Than HUD
Sec. 35.300 Purpose and applicability.
The purpose of this subpart D is to establish procedures to
eliminate as far as practicable lead-based paint hazards in a
residential property that receives more than $5,000 annually per
project in project-based assistance on or after September 15, 2000,
under a program administered by a Federal agency other than HUD.
Sec. 35.305 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.310 Notices and pamphlet.
(a) Notice. A notice of evaluation or hazard reduction shall be
provided to the occupants in accordance with Sec. 35.125.
(b) Lead hazard information pamphlet. The owner shall provide the
lead hazard information pamphlet in accordance with Sec. 35.130.
Sec. 35.315 Risk assessment.
Each owner shall complete a risk assessment in accordance with 40
CFR 745.227(d). Each risk assessment shall be completed in accordance
with the schedule established by the Federal agency.
Sec. 35.320 Hazard reduction.
Each owner shall conduct interim controls consistent with the
findings of the risk assessment report. Hazard reduction shall be
conducted in accordance with subpart R of this part.
Sec. 35.325 Child with an environmental intervention blood lead level.
If a child less than 6 years of age living in a federally assisted
dwelling unit has an environmental intervention blood lead level, the
owner shall immediately conduct a risk assessment in accordance with 40
CFR 745.227(d). Interim controls of identified lead-based paint hazards
shall be conducted in accordance with Sec. 35.1330. Interim controls
are complete when clearance is achieved in accordance with
Sec. 35.1340. The Federal agency shall establish a timetable for
completing risk assessments and hazard reduction when an environmental
intervention blood lead level child is identified.
Subpart E [Reserved]
Subpart F--HUD-Owned Single Family Property
Sec. 35.500 Purpose and applicability.
The purpose of this subpart F is to establish procedures to
eliminate as far as practicable lead-based paint hazards in HUD-owned
single family properties that have been built before 1978 and are sold
with mortgages insured under a program administered by HUD. The
requirements of this subpart apply to any such residential properties
offered for sale on or after September 15, 2000.
Sec. 35.505 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.510 Required procedures.
(a) The following activities shall be conducted for all properties
to which this subpart is applicable:
(1) A visual assessment of all painted surfaces in order to
identify deteriorated paint;
(2) Paint stabilization of all deteriorated paint in accordance
with Sec. 35.1330(a) and (b); and
(3) Clearance in accordance with Sec. 35.1340.
(b) Occupancy shall not be permitted until all required paint
stabilization is complete and clearance is achieved.
(c) If paint stabilization and clearance are not completed before
the closing of the sale, the Department shall assure that paint
stabilization and clearance are carried out pursuant to subpart R of
this part by the purchaser before occupancy.
Subpart G--Multifamily Mortgage Insurance
Sec. 35.600 Purpose and applicability.
The purpose of this subpart G is to establish procedures to
eliminate as far as practicable lead-based paint hazards in a
multifamily residential property for which HUD is the owner of the
mortgage or the owner receives mortgage insurance, under a program
administered by HUD.
Sec. 35.605 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.610 Exemption.
An application for insurance in connection with a refinancing
transaction where an appraisal is not required under the applicable
procedures established by HUD is excluded from the coverage of this
subpart.
Sec. 35.615 Notices and pamphlet.
(a) Notice. If evaluation or hazard reduction is undertaken, the
sponsor shall provide a notice to occupants in accordance with
Sec. 35.125.
(b) Lead hazard information pamphlet. The sponsor shall provide the
lead hazard information pamphlet in accordance with Sec. 35.130.
Sec. 35.620 Multifamily insured property constructed before 1960.
Except as provided in Sec. 35.630, the following requirements apply
to multifamily insured property constructed before 1960:
(a) Risk assessment. Before the issuance of a firm commitment the
sponsor shall conduct a risk assessment in accordance with
Sec. 35.1320(b).
(b) Interim controls. (1) The sponsor shall conduct interim
controls in accordance with Sec. 35.1330 to treat the lead-based paint
hazards identified in the risk assessment. Interim controls are
considered completed when clearance is achieved in accordance with
Sec. 35.1340.
(2) The sponsor shall complete interim controls before the issuance
of the firm commitment or interim controls may be made a condition of
the Federal Housing Administration (FHA) firm commitment, with
sufficient repair or rehabilitation funds escrowed at initial
endorsement of the FHA insured loan.
(c) Ongoing lead-based paint maintenance activities. Before the
issuance of the firm commitment, the sponsor shall agree to incorporate
ongoing lead-based paint maintenance into regular building operations
and maintenance activities in accordance with Sec. 35.1355(a).
Sec. 35.625 Multifamily insured property constructed after 1959 and
before 1978.
Except as provided in Sec. 35.630, before the issuance of the firm
commitment,
[[Page 50210]]
the sponsor shall agree to incorporate ongoing lead-based paint
maintenance practices into regular building operations, in accordance
with Sec. 35.1355(a).
Sec. 35.630 Conversions and major rehabilitations.
The procedures and requirements of this section apply when a
nonresidential property constructed before 1978 is to be converted to
residential use, or a residential property constructed before 1978 is
to undergo rehabilitation that is estimated to cost more than 50
percent of the estimated replacement cost after rehabilitation.
(a) Lead-based paint inspection. Before issuance of a firm FHA
commitment, the sponsor shall conduct a lead-based paint inspection in
accordance with Sec. 35.1320(a).
(b) Abatement. Prior to occupancy, the sponsor shall conduct
abatement of all lead-based paint on the property in accordance with
Sec. 35.1325. Whenever practicable, abatement shall be achieved through
the methods of paint removal or component replacement. If paint removal
or component replacement are not practicable, that is if such methods
would damage substrate material considered architecturally significant,
permanent encapsulation or enclosure may be used as methods of
abatement. Abatement is considered complete when clearance is achieved
in accordance with Sec. 35.1340. If encapsulation or enclosure is used,
the sponsor shall incorporate ongoing lead-based paint maintenance into
regular building operations maintenance activities in accordance with
Sec. 35.1355.
(c) Historic properties. Section 35.115(a)(13) applies to this
section.
Subpart H--Project-Based Rental Assistance
Sec. 35.700 Purpose and applicability.
(a) This subpart H establishes procedures to eliminate as far as
practicable lead-based paint hazards in residential properties
receiving project-based assistance under a HUD program. The
requirements of this subpart apply only to the assisted dwelling units
in a covered property and any common areas servicing those dwelling
units. This subpart does not apply to housing receiving rehabilitation
assistance or to public housing, which are covered by subparts J and M
of this part, respectively.
(b) For the purposes of competitively awarded grants under the
Housing Opportunities for Persons with AIDS Program (HOPWA), the
Supportive Housing Program (42 U.S.C. 11381-11389) and the Shelter Plus
Care Program project-based rental assistance and sponsor-based rental
assistance components (42 U.S.C. 11402-11407), the requirements of this
subpart shall apply to grants awarded pursuant to Notices of Funding
Availability published on or after October 1, 1999. For the purposes of
formula grants awarded under the Housing Opportunities for Persons with
AIDS Program (HOPWA) (42 U.S.C. 12901 et seq.), the requirements of
this subpart shall apply to activities for which program funds are
first obligated on or after September 15, 2000.
Sec. 35.705 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.710 Notices and pamphlet.
(a) Notice. If evaluation or hazard reduction is undertaken, each
owner shall provide a notice to occupants in accordance with
Sec. 35.125.
(b) Lead hazard information pamphlet. The owner shall provide the
lead hazard information pamphlet in accordance with Sec. 35.130.
Sec. 35.715 Multifamily properties receiving more than $5,000 per
unit.
The requirements of this section shall apply to a multifamily
residential property that is receiving an average of more than $5,000
per assisted dwelling unit annually in project-based assistance.
(a) Risk assessment. Each owner shall complete a risk assessment in
accordance with Sec. 35.1320(b). A risk assessment is considered
complete when the owner receives the risk assessment report. Until the
owner conducts a risk assessment as required by this section, the
requirements of paragraph (d) of this section shall apply. After the
risk assessment has been conducted the requirements of paragraphs (b)
and (c) of this section shall apply. Each risk assessment shall be
completed no later than the following schedule or a schedule otherwise
determined by HUD:
(1) Risk assessments shall be completed on or before September 17,
2001, in a multifamily residential property constructed before 1960.
(2) Risk assessments shall be completed on or before September 15,
2003, in a multifamily residential property constructed after 1959 and
before 1978.
(b) Interim controls. Each owner shall conduct interim controls in
accordance with Sec. 35.1330 to treat the lead-based paint hazards
identified in the risk assessment. Interim controls are considered
completed when clearance is achieved in accordance with Sec. 35.1340.
Interim controls shall be completed no later than the following
schedule:
(1) In units occupied by families with children of less than 6
years of age and in common areas servicing those units, interim
controls shall be completed no later than 90 days after the completion
of the risk assessment. In units in which a child of less than 6 years
of age moves in after the completion of the risk assessment, interim
controls shall be completed no later than 90 days after the move-in.
(2) In all other dwelling units, common areas, and the remaining
portions of the residential property, interim controls shall be
completed no later than 12 months after completion of the risk
assessment for those units.
(c) Ongoing lead-based paint maintenance and reevaluation
activities. Effective immediately after completion of the risk
assessment required in Sec. 35.715(a), the owner shall incorporate
ongoing lead-based paint maintenance and reevaluation into the regular
building operations in accordance with Sec. 35.1355, unless all lead-
based paint has been removed. If the reevaluation identifies new lead-
based paint hazards, the owner shall conduct interim controls in
accordance with Sec. 35.1330.
(d) Transitional requirements--(1) Effective date. The requirements
of this paragraph shall apply effective September 15, 2000, and
continuing until the applicable date specified in Sec. 35.715(a) (1) or
(2) or until the owner conducts a risk assessment, whichever is first.
(2) Definitions and other general requirements that apply to this
paragraph are found in subpart B of this part.
(3) Ongoing lead-based paint maintenance. The owner shall
incorporate ongoing lead-based paint maintenance activities into
regular building operations, in accordance with Sec. 35.1355(a), except
that clearance is not required.
(4) Child with an environmental intervention blood lead level. If a
child of less than 6 years of age living in a dwelling unit covered by
this paragraph has an environmental intervention blood lead level, the
owner shall comply with the requirements of Sec. 35.730.
[[Page 50211]]
Sec. 35.720 Multifamily properties receiving up to $5,000 per unit,
and single family properties.
Effective September 15, 2000, the requirements of this section
shall apply to a multifamily residential property that is receiving an
average of up to and including $5,000 per assisted dwelling unit
annually in project-based assistance and to a single family residential
property that is receiving project-based assistance through the Section
8 Moderate Rehabilitation program, the Project-Based Certificate
program, or any other HUD program providing project-based assistance.
(a) Activities at initial and periodic inspection.--(1) Visual
assessment. During the initial and periodic inspections, an inspector
trained in visual assessment for deteriorated paint surfaces in
accordance with procedures established by HUD shall conduct a visual
assessment of all painted surfaces in order to identify any
deteriorated paint.
(2) Paint stabilization. The owner shall stabilize each
deteriorated paint surface in accordance with Sec. 35.1330(a) and
Sec. 35.1330(b) before occupancy of a vacant dwelling unit or, where a
unit is occupied, within 30 days of notification of the results of the
visual assessment. Paint stabilization is considered complete when
clearance is achieved in accordance with Sec. 35.1340.
(3) Notice. The owner shall provide a notice to occupants in
accordance with Secs. 35.125(b) (1) and (c) describing the results of
the clearance examination.
(b) Ongoing lead-based paint maintenance activities. The owner
shall incorporate ongoing lead-based paint maintenance activities into
regular building operations in accordance with Sec. 35.1355(a), unless
all lead-based paint has been removed.
(c) Child with an environmental intervention blood lead level. If a
child of less than 6 years of age living in a dwelling unit covered by
this section has an environmental intervention blood lead level, the
owner shall comply with the requirements of Sec. 35.730.
Sec. 35.725 Section 8 Rent adjustments.
HUD may, subject to the availability of appropriations for Section
8 contract amendments, on a project by project basis for projects
receiving Section 8 project-based assistance, provide adjustments to
the maximum monthly rents to cover the costs of evaluation for and
reduction of lead-based paint hazards, as defined in section 1004 of
the Residential Lead-Based Paint Hazard Reduction Act of 1992.
Sec. 35.730 Child with an environmental intervention blood lead level.
(a) Risk assessment. Within 15 days after being notified by a
public health department or other medical health care provider that a
child of less than 6 years of age living in a dwelling unit to which
this subpart applies has been identified as having an environmental
intervention blood lead level, the owner shall complete a risk
assessment of the dwelling unit in which the child lived at the time
the blood was last sampled and of common areas servicing the dwelling
unit. The risk assessment shall be conducted in accordance with
35.1320(b) and is considered complete when the owner receives the risk
assessment report. The requirements of this paragraph apply regardless
of whether the child is or is not still living in the unit when the
owner receives the notification of the environmental intervention blood
lead level. The requirements of this paragraph (a) shall not apply if
the owner conducted a risk assessment of the unit and common areas
servicing the unit between the date the child's blood was last sampled
and the date when the owner received the notification of the
environmental intervention blood lead level. If a public health
department has already conducted an evaluation of the dwelling unit,
the requirements of this paragraph shall not apply.
(b) Verification. After receiving information from a person who is
not a medical health care provider that a child of less than 6 years of
age living in a dwelling unit covered by this subpart may have an
environmental intervention blood lead level, the owner shall
immediately verify the information with the public health department or
other medical health care provider. If that department or provider
verifies that the child has an environmental intervention blood lead
level, such verification shall constitute notification, and the owner
shall take the action required in paragraphs (a) and (c) of this
section.
(c) Hazard reduction. Within 30 days after receiving the report of
the risk assessment conducted pursuant to paragraph (a) of this section
or the evaluation from the public health department, the owner shall
complete the reduction of identified lead-based paint hazards in
accordance with Sec. 35.1325 or Sec. 35.1330. Hazard reduction is
considered complete when clearance is achieved in accordance with
Sec. 35.1340 and the clearance report states that all lead-based paint
hazards identified in the risk assessment have been treated with
interim controls or abatement or the public health department certifies
that the lead-based paint hazard reduction is complete. The
requirements of this paragraph do not apply if the owner, between the
date the child's blood was last sampled and the date the owner received
the notification of the environmental intervention blood lead level,
already conducted a risk assessment of the unit and common areas
servicing the unit and completed reduction of identified lead-based
paint hazards.
(d) Notice. If evaluation or hazard reduction is undertaken, each
owner shall provide a notice to occupants in accordance with
Sec. 35.125.
(e) Reporting requirement. The owner shall report the name and
address of a child identified as having an environmental intervention
blood lead level to the public health department within 5 working days
of being so notified by any other medical health care professional.
Subpart I--HUD-Owned and Mortgagee-in-Possession Multifamily
Property
Sec. 35.800 Purpose and applicability.
The purpose of this subpart I is to establish procedures to
eliminate as far as practicable lead-based paint hazards in a HUD-owned
multifamily residential property or a multifamily residential property
for which HUD is identified as mortgagee-in-possession. The
requirements of this subpart apply to any such property that is offered
for sale or held or managed on or after September 15, 2000.
Sec. 35.805 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.810 Notices and pamphlet.
(a) Notices. When evaluation or hazard reduction is undertaken, the
Department shall provide a notice to occupants in accordance with
Sec. 35.125.
(b) Lead hazard information pamphlet. HUD shall provide the lead
hazard information pamphlet in accordance with Sec. 35.130.
Sec. 35.815 Evaluation.
HUD shall conduct a risk assessment and a lead-based paint
inspection in accordance with Sec. 35.1320(a) and (b). For properties
to which this subpart applies on September 15, 2000, the lead-based
paint inspection and risk assessment shall be conducted no later than
December 15, 2000, or before publicly advertising the property for
sale, whichever is sooner. For properties to which this subpart becomes
[[Page 50212]]
applicable after September 15, 2000, the lead-based paint inspection
and risk assessment shall be conducted no later than 90 days after this
subpart becomes applicable or before publicly advertising the property
for sale, whichever is sooner.
Sec. 35.820 Interim controls.
HUD shall conduct interim controls in accordance with Sec. 35.1330
to treat the lead-based paint hazards identified in the evaluation
conducted in accordance with Sec. 35.815. Interim controls are
considered completed when clearance is achieved in accordance with
Sec. 35.1340. Interim controls of all lead-based paint hazards shall be
completed no later than the following schedule:
(a) In units occupied by families with children of less than 6
years of age and in common areas servicing those units, interim
controls shall be completed no later than 90 days after the completion
of the risk assessment. In units in which a child of less than 6 years
of age moves in after the completion of the risk assessment, interim
controls shall be completed no later than 90 days after the move-in.
(b) In all other dwelling units, common areas, and the remaining
portions of the residential property, interim controls shall be
completed no later than 12 months after completion of the risk
assessment for those units.
(c) If conveyance of the title by HUD at a sale of a HUD-owned
property or a foreclosure sale caused by HUD when HUD is mortgagee-in-
possession occurs before the schedule in paragraphs (a) and (b) of this
section, HUD shall complete interim controls before conveyance or
foreclosure, or HUD shall be responsible for assuring that interim
controls are carried out by the purchaser. If interim controls are made
a condition of sale, such controls shall be completed according to the
following schedule:
(1) In units occupied by families with children of less than 6
years of age and in common areas servicing those units, interim
controls shall be completed no later than 90 days after the date of the
closing of the sale. In units in which a child of less than 6 years of
age moves in after the closing of the sale, interim controls shall be
completed no later than 90 days after the move-in.
(2) In all other dwelling units, in common areas servicing those
units, and in the remaining portions of the residential property,
interim controls shall be completed no later than 180 days after the
closing of the sale.
Sec. 35.825 Ongoing lead-based paint maintenance and reevaluation.
HUD shall incorporate ongoing lead-based paint maintenance and
reevaluation, in accordance with Sec. 35.1355, into regular building
operations if HUD retains ownership of the residential property for
more than 12 months.
Sec. 35.830 Child with an environmental intervention blood lead level.
(a) Risk assessment. Within 15 days after being notified by a
public health department or other medical health care provider that a
child of less than 6 years of age living in a multifamily dwelling unit
owned by HUD (or where HUD is mortgagee-in-possession) has been
identified as having an environmental intervention blood lead level,
HUD shall complete a risk assessment of the dwelling unit in which the
child lived at the time the blood was last sampled and of common areas
servicing the dwelling unit. The risk assessment shall be conducted in
accordance with Sec. 35.1320(b) and is considered complete when HUD
receives the risk assessment report. The requirements of this paragraph
apply regardless of whether the child is or is not still living in the
unit when HUD receives the notification of the environmental
intervention blood lead level. The requirements of this paragraph do
not apply if HUD conducted a risk assessment of the unit and common
areas servicing the unit between the date the child's blood was last
sampled and the date when HUD received the notification of the
environmental intervention blood lead level. If a public health
department has already conducted an evaluation of the dwelling unit,
the requirements of this paragraph shall not apply.
(b) Verification. After receiving information from a person who is
not a medical health care provider that a child of less than 6 years of
age living in a multifamily dwelling unit owned by HUD (or where HUD is
mortgagee-in-possession) may have an environmental intervention blood
lead level, HUD shall immediately verify the information with the
public health department or other medical health care provider. If that
department or provider verifies that the child has an environmental
intervention blood lead level, such verification shall constitute
notification, and HUD shall take the action required in paragraphs (a)
and (c) of this section.
(c) Hazard reduction. Within 30 days after receiving the report of
the risk assessment conducted pursuant to paragraph (a) of this section
or the evaluation from the public health department, HUD shall complete
the reduction of lead-based paint hazards identified in the risk
assessment in accordance with Sec. 35.1325 or Sec. 35.1330. Hazard
reduction is considered complete when clearance is achieved in
accordance with Sec. 35.1340 and the clearance report states that all
lead-based paint hazards identified in the risk assessment have been
treated with interim controls or abatement or the public health
department certifies that the lead-based paint hazard reduction is
complete. The requirements of this paragraph do not apply if HUD,
between the date the child's blood was last sampled and the date HUD
received the notification of the environmental intervention blood lead
level, conducted a risk assessment of the unit and common areas
servicing the unit and completed reduction of identified lead-based
paint hazards.
(d) Reporting requirement. HUD shall report the name and address of
a child identified as having an environmental intervention blood lead
level to the public health department within 5 working days of being so
notified by any other health professional.
(e) Closing. If the closing of a sale is scheduled during the
period when HUD is responding to a case of a child with an
environmental intervention blood lead level, HUD may arrange for the
completion of the procedures required by Sec. 35.830(a)-(d) by the
purchaser within a reasonable period of time.
(f) Extensions. The Assistant Secretary for Housing-Federal Housing
Commissioner or designee may consider and approve a request for an
extension of deadlines established by this section for a lead-based
paint inspection, risk assessment, hazard reduction, and reporting.
Such a request may be considered, however, only during the first six
months during which HUD is owner or mortgagee-in-possession of a
multifamily property.
Subpart J--Rehabilitation
Sec. 35.900 Purpose and applicability.
(a) Purpose and applicability. (1) The purpose of this subpart J is
to establish procedures to eliminate as far as practicable lead-based
paint hazards in a residential property that receives Federal
rehabilitation assistance under a program administered by HUD.
Rehabilitation assistance does not include project-based rental
assistance, rehabilitation mortgage insurance or assistance to public
housing.
(2) The requirements of this subpart shall not apply to HOME funds
which are committed to a specific project in accordance with Sec. 92.2
of this title before September 15, 2000. Such
[[Page 50213]]
projects shall be subject to the requirements of Sec. 92.355 of this
title that were in effect at the time of project commitment or the
requirements of this subpart.
(3) For the purposes of the Indian Housing Block Grant program and
the CDBG Entitlement program, the requirements of this subpart shall
apply to all residential rehabilitation activities (except those
otherwise exempted) for which funds are first obligated on or after
September 15, 2000. For the purposes of the State, HUD-Administered
Small Cities, and Insular Areas CDBG programs, the requirements of this
subpart shall apply to all covered activities (except those otherwise
exempted) for which grant funding is awarded to the unit of local
government by the State or HUD, as applicable, on or after September
15, 2000. For the purposes of the Emergency Shelter Grant Program (42
U.S.C. 11371-11378) and the formula grants awarded under the Housing
Opportunities for Persons with AIDS Program (HOPWA) (42 U.S.C. 12901
et. seq.), the requirements of this subpart shall apply to activities
for which program funds are first obligated on or after September 15,
2000.
(4) For the purposes of competitively awarded grants under the
HOPWA Program and the Supportive Housing Program (42 U.S.C. 11481-
11389), the requirements of this subpart shall apply to grants awarded
under Notices of Funding Availability published on or after September
15, 2000.
(5) For the purposes of the Indian CDBG program (Sec. 1003.607 of
this title), the requirements of this subpart shall not apply to funds
whose notice of funding availability is announced or funding letter is
sent before September 15, 2000. Such project grantees shall be subject
to the regulations in effect at the time of announcement or funding
letter.
(b) The grantee or participating jurisdiction may assign to a
subrecipient or other entity the responsibilities set forth in this
subpart.
Sec. 35.905 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.910 Notices and pamphlet.
(a) Notices. In cases where evaluation or hazard reduction or both
are undertaken as part of federally funded rehabilitation, the grantee,
participating jurisdiction, or CILP recipient, shall provide a notice
to occupants in accordance with Sec. 35.125.
(b) Lead hazard information pamphlet. The grantee, participating
jurisdiction, or CILP recipient, shall provide the lead hazard
information pamphlet in accordance with Sec. 35.130.
Sec. 35.915 Calculating rehabilitation costs, except for the CILP
Program.
(a) Applicability. This section applies to recipients of Federal
rehabilitation assistance, except for CILP recipients, for which
Sec. 35.920 applies.
(b) Rehabilitation assistance. (1) Lead-based paint requirements
for rehabilitation fall into three categories which depend on the
amount of rehabilitation assistance provided. The three categories are:
(i) Assistance of up to and including $5,000 per unit;
(ii) Assistance of more than $5,000 per unit up to and including
$25,000 per unit; and
(iii) Assistance of more than $25,000 per unit.
(2) For purposes of implementing Secs. 35.930-35.935, the amount of
rehabilitation assistance is the average per unit amount of Federal
funds for the hard costs of rehabilitation, excluding lead-based paint
hazard evaluation and hazard reduction activities. Costs of site
preparation, occupant protection, relocation, interim controls,
abatement, clearance and waste handling attributable to lead-based
paint hazard reduction are not to be included in the hard costs of
rehabilitation.
(c) Calculating rehabilitation assistance. For a residential
property that includes both federally assisted and non-assisted units,
the rehabilitation costs of non-assisted units are not included in the
calculation.
(1) The average cost of rehabilitation for the assisted units is
calculated as follows:
Per Unit Rehabilitation $ = (a/c) + (b/d)
Where:
a= Federal Rehabilitation Assistance for all assisted units
b= Federal Rehabilitation Assistance for common areas and exterior
painted surfaces
c= Number of federally assisted units
d= Total number of units
(2) Eight out of 10 dwelling units in a residential property
receive Federal rehabilitation assistance. The total amount of Federal
rehabilitation assistance for the dwelling units is $90,000, and the
total amount of Federal rehabilitation assistance for the common areas
and exterior surfaces is $10,000. Based on the formula above, the
average per unit amount of Federal rehabilitation assistance is
$12,250. This is illustrated as follows: $12,250 = ($90,000/8) +
($10,000/10).
Sec. 35.920 Calculating rehabilitation costs for the Flexible Subsidy-
CILP program.
All dwelling units and common areas in a residential property are
considered to be assisted under the CILP program. The cost of
rehabilitation is calculated as follows:
Per Unit Rehab $ = Federal Rehab Assistance / Total Number of
Units.
Sec. 35.925 Examples of determining applicable requirements.
The following examples illustrate how to determine whether the
requirements of Secs. 35.930(b), (c), or (d) apply to a dwelling unit
receiving Federal rehabilitation assistance (dollar amounts are on a
per unit basis):
(a) If the total amount of Federal assistance for a dwelling is
$2,000, and the hard costs of rehabilitation are $10,000, the lead-
based paint requirements would be those described in Sec. 35.930(b),
because Federal rehabilitation assistance is up to and including
$5,000.
(b) If the total amount of Federal assistance for a dwelling unit
is $6,000, and the hard costs of rehabilitation are $2,000, the lead-
based paint requirements would be those described in Sec. 35.930(b).
Although the total amount of Federal dollars is more than $5,000, only
the $2,000 of that total can be applied to rehabilitation. Therefore,
the Federal rehabilitation assistance is $2,000 which is not more than
$5,000.
(c) If the total amount of Federal assistance for a unit is $6,000,
and the hard costs of rehabilitation are $6,000, the lead-based paint
requirements are those described in Sec. 35.930(c), because the amount
of Federal rehabilitation assistance is more than $5,000 but not more
than $25,000.
Sec. 35.930 Evaluation and hazard reduction requirements.
(a) Paint testing. The grantee, participating jurisdiction, or CILP
recipient shall either perform paint testing on the painted surfaces to
be disturbed or replaced during rehabilitation activities, or presume
that all these painted surfaces are coated with lead-based paint.
(b) Residential property receiving an average of up to and
including $5,000 per unit in Federal rehabilitation assistance. Each
grantee, participating jurisdiction, or CILP recipient shall:
(1) Conduct paint testing or presume the presence of lead-based
paint, in accordance with paragraph (a) of this section. If paint
testing indicates that the painted surfaces are not coated with lead-
based paint, safe work practices and clearance are not required.
[[Page 50214]]
(2) Implement safe work practices during rehabilitation work in
accordance with Sec. 35.1350 and repair any paint that is disturbed.
(3) After completion of any rehabilitation disturbing painted
surfaces, perform a clearance examination of the worksite(s) in
accordance with Sec. 35.1340. Clearance is not required if
rehabilitation did not disturb painted surfaces of a total area more
than that set forth in Sec. 35.1350(b).
(c) Residential property receiving an average of more than $5,000
and up to and including $25,000 per unit in Federal rehabilitation
assistance. Each grantee, participating jurisdiction, or CILP recipient
shall:
(1) Conduct paint testing or presume the presence of lead-based
paint, in accordance with paragraph (a) of this section.
(2) Perform a risk assessment in the dwelling units receiving
Federal assistance, in common areas servicing those units, and exterior
painted surfaces, in accordance with Sec. 35.1320(b), before
rehabilitation begins.
(3) Perform interim controls in accordance with Sec. 35.1330 of all
lead-based paint hazards identified pursuant to paragraphs (c)(1) and
(c)(2) of this section and any lead-based paint hazards created as a
result of the rehabilitation work.
(d) Residential property receiving an average of more than $25,000
per unit in Federal rehabilitation assistance. Each grantee,
participating jurisdiction, or CILP recipient shall:
(1) Conduct paint testing or presume the presence of lead-based
paint in accordance with paragraph (a) of this section.
(2) Perform a risk assessment in the dwelling units receiving
Federal assistance and in associated common areas and exterior painted
surfaces in accordance with Sec. 35.1320(b) before rehabilitation
begins.
(3) Abate all lead-based paint hazards identified by the paint
testing or risk assessment conducted pursuant to paragraphs (d)(1) and
(d)(2) of this section, and any lead-based paint hazards created as a
result of the rehabilitation work, in accordance with Sec. 35.1325,
except that interim controls are acceptable on exterior surfaces that
are not disturbed by rehabilitation.
Sec. 35.935 Ongoing lead-based paint maintenance activities.
In the case of a rental property receiving Federal rehabilitation
assistance under the HOME program or the Flexible Subsidy-CILP program,
the grantee, participating jurisdiction or CILP recipient shall require
the property owner to incorporate ongoing lead-based paint maintenance
activities into regular building operations, in accordance with
Sec. 35.1355(a).
Sec. 35.940 Special requirements for insular areas.
If a dwelling unit receiving Federal assistance under a program
covered by this subpart is located in an insular area, the requirements
of this section shall apply and the requirements of Sec. 35.930 shall
not apply. All other sections of this subpart J shall apply. The
insular area shall conduct the following activities for the dwelling
unit, common areas servicing the dwelling unit, and the exterior
surfaces of the building in which the dwelling unit is located:
(a) Residential property receiving an average of up to and
including $5,000 per unit in Federal rehabilitation assistance. (1)
Implement safe work practices during rehabilitation work in accordance
with Sec. 35.1350 and repair any paint that is disturbed by
rehabilitation.
(2) After completion of any rehabilitation disturbing painted
surfaces, perform a clearance examination of the worksite(s) in
accordance with Sec. 35.1340. Clearance shall be achieved before
residents are allowed to occupy the worksite(s). Clearance is not
required if rehabilitation did not disturb painted surfaces of a total
area more than that set forth in Sec. 35.1350(b).
(b) Residential property receiving an average of more than $5,000
per unit in Federal rehabilitation assistance. (1) Before beginning
rehabilitation, perform a visual assessment of all painted surfaces in
order to identify deteriorated paint.
(2) Perform paint stabilization of each deteriorated paint surface
and each painted surface being disturbed by rehabilitation, in
accordance with Secs. 35.1330(a) and (b).
(3) After completion of all paint stabilization, perform a
clearance examination of the affected dwelling units and common areas
in accordance with Sec. 35.1340. Clearance shall be achieved before
residents are allowed to occupy rooms or spaces in which paint
stabilization has been performed.
Subpart K--Acquisition, Leasing, Support Services, or Operation.
Sec. 35.1000 Purpose and applicability.
(a) The purpose of this subpart K is to establish procedures to
eliminate as far as practicable lead-based paint hazards in a
residential property that receives Federal assistance under certain HUD
programs for acquisition, leasing, support services, or operation.
Acquisition, leasing, support services, and operation do not include
mortgage insurance, sale of federally-owned housing, project-based or
tenant-based rental assistance, rehabilitation assistance, or
assistance to public housing. For requirements pertaining to those
activities or types of assistance, see the applicable subpart of this
part.
(b) The grantee or participating jurisdiction may assign to a
subrecipient or other entity the responsibilities set forth in this
subpart.
(c)(1) The requirements of this subpart shall not apply to HOME
funds which are committed to a specific project in accordance with
Sec. 92.2 of this title before September 15, 2000. Such projects shall
be subject to the requirements of Sec. 92.355 of this title that were
in effect at the time of project commitment, or the requirements of
this subpart.
(2) For the purposes of the CDBG Entitlement program and the Indian
Housing Block Grant program, the requirements of this subpart shall
apply to all residential rehabilitation activities (except those
otherwise exempted) for which funds are first obligated on or after
September 15, 2000. For the purposes of the State, HUD-Administered
Small Cities, and Insular Areas CDBG programs, the requirements of this
subpart shall apply to all covered activities (except those otherwise
exempted) for which grant funding is awarded to the unit of local
government by the State or HUD, as applicable, on or after September
15, 2000. For the purposes of the Emergency Shelter Grant Program (42
U.S.C. 11371-11378) and the formula grants awarded under the Housing
Opportunities for Persons with AIDS Program (HOPWA) (42 U.S.C. 12901
et. seq.), the requirements of this subpart shall apply to activities
for which program funds are first obligated on or after September 15,
2000.
(3) For the purposes of competitively awarded grants under the
HOPWA Program and the Supportive Housing Program (42 U.S.C. 11481-
11389), the requirements of this subpart shall apply to grants awarded
under Notices of Funding Availability published on or after September
15, 2000.
(4) For the purposes of the Indian CDBG program (Sec. 1003.607 of
this title), the requirements of this subpart shall not apply to funds
whose notice of funding availability is announced or funding letter is
sent before September 15, 2000. Such project grantees shall be subject
to the regulations in effect at the time of announcement or funding
letter.
[[Page 50215]]
Sec. 35.1005 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.1010 Notices and pamphlet
(a) Notice. In cases where evaluation or hazard reduction,
including paint stabilization, is undertaken, each grantee or
participating jurisdiction shall provide a notice to residents in
accordance with Sec. 35.125. A visual assessment is not considered an
evaluation for purposes of this part.
(b) Lead hazard information pamphlet. The grantee or participating
jurisdiction shall provide the lead hazard information pamphlet in
accordance with Sec. 35.130.
Sec. 35.1015 Visual assessment, paint stabilization, and maintenance.
If a dwelling unit receives Federal assistance under a program
covered by this subpart, each grantee or participating jurisdiction
shall conduct the following activities for the dwelling unit, common
areas servicing the dwelling unit, and the exterior surfaces of the
building in which the dwelling unit is located:
(a) A visual assessment of all painted surfaces in order to
identify deteriorated paint;
(b) Paint stabilization of each deteriorated paint surface, and
clearance, in accordance with Secs. 35.1330(a) and (b), before
occupancy of a vacant dwelling unit or, where a unit is occupied,
immediately after receipt of Federal assistance; and
(c) The grantee or participating jurisdiction shall incorporate
ongoing lead-based paint maintenance activities into regular building
operations, in accordance with Sec. 35.1355(a).
(d) The grantee or participating jurisdiction shall provide a
notice to occupants in accordance with Secs. 35.125(b)(1) and (c),
describing the results of the clearance examination.
Sec. 35.1020 Funding for evaluation and hazard reduction.
The grantee or participating jurisdiction shall determine whether
the cost of evaluation and hazard reduction is to be borne by the
owner/developer, the grantee or a combination of the owner/developer
and the grantee, based on program requirements and local program
design.
Subpart L--Public Housing Programs
Sec. 35.1100 Purpose and applicability.
The purpose of this subpart L is to establish procedures to
eliminate as far as practicable lead-based paint hazards in residential
property assisted under the U.S. Housing Act of 1937 (42 U.S.C. 1437 et
seq.) but not including housing assisted under section 8 of the 1937
Act.
Sec. 35.1105 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.1110 Notices and pamphlet.
(a) Notice. In cases where evaluation or hazard reduction is
undertaken, each public housing agency (PHA) shall provide a notice to
residents in accordance with Sec. 35.125.
(b) Lead hazard information pamphlet. The PHA shall provide the
lead hazard information pamphlet in accordance with Sec. 35.130.
Sec. 35.1115 Evaluation.
(a) A lead-based paint inspection shall be conducted in all public
housing unless a lead-based paint inspection that meets the conditions
of Sec. 35.165(a) has already been completed. If a lead-based paint
inspection was conducted by a lead-based paint inspector who was not
certified, the PHA shall review the quality of the inspection, in
accordance with quality control procedures established by HUD, to
determine whether the lead-based paint inspection has been properly
performed and the results are reliable. Lead-based paint inspections of
all housing to which this subpart applies shall be completed no later
than September 15, 2000. Revisions or augmentations of prior
inspections found to be of insufficient quality shall be completed no
later than September 17, 2001.
(b) If a lead-based paint inspection has found the presence of
lead-based paint, or if no lead-based paint inspection has been
conducted, the PHA shall conduct a risk assessment according to the
following schedule, unless a risk assessment that meets the conditions
of Sec. 35.165(b) has already been completed:
(1) Risk assessments shall be completed on or before March 15,
2001, in a multifamily residential property constructed before 1960.
(2) Risk assessments shall be completed on or before March 15,
2002, in a multifamily residential property constructed after 1959 and
before 1978.
(c) A PHA that advertises a construction contract (including
architecture/engineering contracts) for bid or award or plans to start
force account work shall not execute such contract until a lead-based
paint inspection and, if required, a risk assessment, has taken place
and any necessary abatement is included in the modernization budget,
except for contracts solely for emergency work in accordance with
Sec. 35.115(a)(9).
(d) The five-year funding request plan for CIAP and CGP shall be
amended to include the schedule and funding for lead-based paint
activities.
Sec. 35.1120 Hazard reduction.
(a) Each PHA shall, in accordance with Sec. 35.1325, abate all
lead-based paint and lead-based paint hazards identified in the
evaluations conducted pursuant to Sec. 35.1115. The PHA shall abate
lead-based paint and lead-based paint hazards in accordance with
Sec. 35.1325 during the course of physical improvements conducted under
the modernization.
(b) In all housing where abatement of all lead-based paint and
lead-based paint hazards required in paragraph (a) of this section has
not yet occurred, each PHA shall conduct interim controls, in
accordance with Sec. 35.1330, of the lead-based paint hazards
identified in the most recent risk assessment.
(1) Interim controls of dwelling units in which any child who is
less than 6 years of age resides and common areas servicing those
dwelling units shall be completed within 90 days of the evaluation
under Sec. 35.1330. If a unit becomes newly occupied by a family with a
child of less than 6 years of age or such child moves into a unit,
interim controls shall be completed within 90 days after the new
occupancy or move-in if they have not already been completed.
(2) Interim controls in dwelling units not occupied by families
with one or more children of less than 6 years of age, common areas
servicing those units, and the remaining portions of the residential
property shall be completed no later than 12 months after completion of
the evaluation conducted under Sec. 35.1115.
(c) The PHA shall incorporate ongoing lead-based paint maintenance
and reevaluation activities into regular building operations in
accordance with Sec. 35.1355. In accordance with Sec. 35.115(a) (6) and
(7), this requirement does not apply to a development or part thereof
if it is to be demolished or disposed of in accordance with disposition
requirements in part 970 of this title, provided the dwelling unit will
remain unoccupied until demolition, or if it is not used and will not
be used for human habitation.
[[Page 50216]]
Sec. 35.1125 Evaluation and hazard reduction before acquisition and
development.
(a) For each residential property constructed before 1978 and
proposed to be acquired for a family project (whether or not it will
need rehabilitation) a lead-based paint inspection and risk assessment
for lead-based paint hazards shall be conducted in accordance with
Sec. 35.1320.
(b) If lead-based paint is found in a residential property to be
acquired, the cost of evaluation and abatement shall be considered when
making the cost comparison to justify new construction, as well as when
meeting maximum total development cost limitations.
(c) If lead-based paint is found, compliance with this subpart is
required, and abatement of lead-based paint and lead-based paint
hazards shall be completed in accordance with Sec. 35.1325 before
occupancy.
Sec. 35.1130 Child with an environmental intervention blood lead
level.
(a) Risk assessment. Within 15 days after being notified by a
public health department or other medical health care provider that a
child of less than 6 years of age living in a public housing
development has been identified as having an environmental intervention
blood lead level, the PHA shall complete a risk assessment of the
dwelling unit in which the child lived at the time the blood was last
sampled and of common areas servicing the dwelling unit, the provisions
of Sec. 35.1115(b) notwithstanding. The risk assessment shall be
conducted in accordance with Sec. 35.1320(b) and is considered complete
when the PHA receives the risk assessment report. The requirements of
this paragraph apply regardless of whether the child is or is not still
living in the unit when the PHA receives the notification of the
environmental intervention blood lead level. The requirements of this
paragraph shall not apply if the PHA conducted a risk assessment of the
unit and common areas servicing the unit between the date the child's
blood was last sampled and the date when the PHA received the
notification of the environmental intervention blood lead level. If the
public health department has already conducted an evaluation of the
dwelling unit, the requirements of this paragraph shall not apply.
(b) Verification. After receiving information from a person who is
not a medical health care provider that a child of less than 6 years of
age living in a public housing development may have an environmental
intervention blood lead level, the PHA shall immediately verify the
information with the public health department or other medical health
care provider. If that department or provider verifies that the child
has an environmental intervention blood lead level, such verification
shall constitute notification, and the housing agency shall take the
action required in paragraphs (a) and (c) of this section.
(c) Hazard reduction. Within 30 days after receiving the report of
the risk assessment conducted pursuant to paragraph (a) of this section
or the evaluation from the public health department, the PHA shall
complete the reduction of lead-based paint hazards identified in the
risk assessment in accordance with Sec. 35.1325 or Sec. 35.1330. Hazard
reduction is considered complete when clearance is achieved in
accordance with Sec. 35.1340 and the clearance report states that all
lead-based paint hazards identified in the risk assessment have been
treated with interim controls or abatement or the local or State health
department certifies that lead-based paint hazard reduction is
complete. The requirements of this paragraph do not apply if the PHA,
between the date the child's blood was last sampled and the date the
owner received the notification of the environmental intervention blood
lead level, already conducted a risk assessment of the unit and common
areas servicing the unit and completed reduction of identified lead-
based paint hazards.
(d) Notice of evaluation and hazard reduction. The PHA shall notify
building residents of any evaluation or hazard reduction activities in
accordance with Sec. 35.125.
(e) Reporting requirement. The PHA shall report the name and
address of a child identified as having an environmental intervention
blood lead level to the public health department within 5 working days
of being so notified by any other medical health care professional. The
PHA shall also report each known case of a child with an environmental
intervention blood lead level to the HUD field office.
(f) Other units in building. If the risk assessment conducted
pursuant to paragraph (a) of this section identifies lead-based paint
hazards and previous evaluations of the building conducted pursuant to
Sec. 35.1320 did not identify lead-based paint or lead-based paint
hazards, the PHA shall conduct a risk assessment of other units of the
building in accordance with Sec. 35.1320(b) and shall conduct interim
controls of identified hazards in accordance with the schedule provided
in Sec. 35.1120(c).
Sec. 35.1135 Eligible costs.
A PHA may use financial assistance received under the modernization
program (CIAP or CGP) for the notice, evaluation and reduction of lead-
based paint hazards in accordance with Sec. 968.112 of this title.
Eligible costs include:
(a) Evaluation and insurance costs. Evaluation and hazard reduction
activities, and costs for insurance coverage associated with these
activities.
(b) Planning costs. Planning costs are costs that are incurred
before HUD approval of the CGP or CIAP application and that are related
to developing the CIAP application or carrying out eligible
modernization planning, such as planning for abatement, detailed design
work, preparation of solicitations, and evaluation. Planning costs may
be funded as a single work item. Planning costs shall not exceed 5
percent of the CIAP funds available to a HUD Field Office in a
particular fiscal year.
(c) Architectural/engineering and consultant fees. Eligible costs
include fees for planning, identification of needs, detailed design
work, preparation of construction and bid documents and other required
documents, evaluation, planning and design for abatement, and
inspection of work in progress.
(d) Environmental intervention blood lead level response costs. The
PHA may use its operating reserves and, when necessary, may request
reimbursement from the current fiscal year CIAP funds, or request the
reprogramming of previously approved CIAP funds to cover the costs of
evaluation and hazard reduction.
Sec. 35.1140 Insurance coverage.
For the requirements concerning the obligation of a PHA to obtain
reasonable insurance coverage with respect to the hazards associated
with evaluation and hazard reduction activities, see Sec. 965.215 of
this title.
Subpart M--Tenant-Based Rental Assistance
Sec. 35.1200 Purpose and applicability.
(a) Purpose. The purpose of this subpart M is to establish
procedures to eliminate as far as practicable lead-based paint hazards
in housing occupied by families receiving tenant-based rental
assistance. Such assistance includes tenant-based rental assistance
under the Section 8 certificate program, the Section 8 voucher program,
the HOME program, the Shelter Plus Care program, the Housing
Opportunities for Persons With AIDS (HOPWA) program,
[[Page 50217]]
and the Indian Housing Block Grant program. Tenant-based rental
assistance means rental assistance that is not attached to the
structure.
(b) Applicability. (1) This subpart applies only to dwelling units
occupied or to be occupied by families or households that have one or
more children of less than 6 years of age, common areas servicing such
dwelling units, and exterior painted surfaces associated with such
dwelling units or common areas. Common areas servicing a dwelling unit
include those areas through which residents pass to gain access to the
unit and other areas frequented by resident children of less than 6
years of age, including on-site play areas and child care facilities.
(2) For the purposes of the Section 8 tenant-based certificate
program and the Section 8 voucher program:
(i) The requirements of this subpart are applicable where an
initial or periodic inspection occurs on or after September 15, 200;
and
(ii) The PHA shall be the designated party.
(3) For the purposes of formula grants awarded under the Housing
Opportunities for Persons with AIDS Program (HOPWA) (42 U.S.C. 12901 et
seq.):
(i) The requirements of this subpart shall apply to activities for
which program funds are first obligated on or after September 15, 2000;
and
(ii) The grantee shall be the designated party.
(4) For the purposes of competitively awarded grants under the
HOPWA Program and the Shelter Plus Care program (42 U.S.C. 11402-11407)
tenant-based rental assistance component:
(i) The requirements of this subpart shall apply to grants awarded
pursuant to Notices of Funding Availability published on or after
October 1, 1999; and
(ii) The grantee shall be the designated party.
(5) For the purposes of the HOME program:
(i) The requirements of this subpart shall not apply to funds which
are committed in accordance with Sec. 92.2 of this title before
September 15, 2000; and
(ii) The participating jurisdiction shall be the designated party.
(6) For the purposes of the Indian Housing Block Grant program:
(i) The requirements of this subpart shall apply to activities for
which funds are first obligated on or after September 15, 2000; and
(ii) The IHBG recipient shall be the designated party.
(7) The housing agency, grantee, participating jurisdiction, or
IHBG recipient may assign to a subrecipient or other entity the
responsibilities of the designated party in this subpart.
Sec. 35.1205 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.1210 Notices and pamphlet.
(a) Notice. In cases where evaluation or paint stabilization is
undertaken, the owner shall provide a notice to residents in accordance
with Sec. 35.125. A visual assessment is not an evaluation.
(b) Lead hazard information pamphlet. The owner shall provide the
lead hazard information pamphlet in accordance with Sec. 35.130.
Sec. 35.1215 Activities at initial and periodic inspection.
(a) (1) During the initial and periodic inspections, an inspector
acting on behalf of the designated party and trained in visual
assessment for deteriorated paint surfaces in accordance with
procedures established by HUD shall conduct a visual assessment of all
painted surfaces in order to identify any deteriorated paint.
(2) For tenant-based rental assistance provided under the HOME
program, visual assessment shall be conducted as part of the initial
and periodic inspections required under Sec. 92.209(i) of this title.
(b) The owner shall stabilize each deteriorated paint surface in
accordance with Sec. 35.1330(a) and (b) before commencement of assisted
occupancy. If assisted occupancy has commenced prior to a periodic
inspection, such paint stabilization must be completed within 30 days
of notification of the owner of the results of the visual assessment.
Paint stabilization is considered complete when clearance is achieved
in accordance with Sec. 35.1340.
(c) The owner shall provide a notice to occupants in accordance
with Sec. 35.125(b)(1) and (c) describing the results of the clearance
examination.
Sec. 35.1220 Ongoing lead-based paint maintenance activities.
The owner shall incorporate ongoing lead-based paint maintenance
activities into regular building operations in accordance with
Sec. 35.1355(a).
Sec. 35.1225 Child with an environmental intervention blood lead
level.
(a) Within 15 days after being notified by a public health
department or other medical health care provider that a child of less
than 6 years of age living in an assisted dwelling unit has been
identified as having an environmental intervention blood lead level,
the designated party shall complete a risk assessment of the dwelling
unit in which the child lived at the time the blood was last sampled
and of the common areas servicing the dwelling unit. The risk
assessment shall be conducted in accordance with Sec. 35.1320(b). When
the risk assessment is complete, the designated party shall immediately
provide the report of the risk assessment to the owner of the dwelling
unit. If the child identified as having an environmental intervention
blood lead level is no longer living in the unit when the designated
party receives notification from the public health department or other
medical health care provider, but another household receiving tenant-
based rental assistance is living in the unit or is planning to live
there, the requirements of this section apply just as they do if the
child still lives in the unit. If a public health department has
already conducted an evaluation of the dwelling unit, or the designated
party conducted a risk assessment of the unit and common areas
servicing the unit between the date the child's blood was last sampled
and the date when the designated party received the notification of the
environmental intervention blood lead level, the requirements of this
paragraph shall not apply.
(b) Verification. After receiving information from a source other
than a public health department or other medical health care provider
that a child of less than 6 years of age living in an assisted dwelling
unit may have an environmental intervention blood lead level, the
designated party shall immediately verify the information with a public
health department or other medical health care provider. If that
department or provider verifies that the child has an environmental
intervention blood lead level, such verification shall constitute
notification to the designated party as provided in paragraph (a) of
this section, and the designated party shall take the action required
in paragraphs (a) and (c) of this section.
(c) Hazard reduction. Within 30 days after receiving the risk
assessment report from the designated party or the evaluation from the
public health department, the owner shall complete the reduction of
identified lead-based paint hazards in accordance with Sec. 35.1325 or
Sec. 35.1330. Hazard reduction is considered complete when clearance is
achieved in accordance with Sec. 35.1340 and the clearance report
states that all lead-based paint hazards identified in the risk
assessment have been treated with interim controls or
[[Page 50218]]
abatement or when the public health department certifies that the lead-
based paint hazard reduction is complete. If the owner does not
complete the hazard reduction required by this section, the dwelling
unit is in violation of Housing Quality Standards (HQS).
(d) Notice of evaluation and hazard reduction. The owner shall
notify building residents of any evaluation or hazard reduction
activities in accordance with Sec. 35.125.
(e) Reporting requirement. The designated party shall report the
name and address of a child identified as having an environmental
intervention blood lead level to the public health department within 5
working days of being so notified by any other medical health care
professional.
(f) Data collection and record keeping responsibilities. At least
quarterly, the designated party shall attempt to obtain from the public
health department(s) with area(s) of jurisdiction similar to that of
the designated party the names and/or addresses of children of less
than 6 years of age with an identified environmental intervention blood
lead level. At least quarterly, the designated party shall also report
an updated list of the addresses of units receiving assistance under a
tenant-based rental assistance program to the same public health
department(s), except that the report(s) to the public health
department(s) is not required if the health department states that it
does not wish to receive such report. If it obtains names and addresses
of environmental intervention blood lead level children from the public
health department(s), the designated party shall match information on
cases of environmental intervention blood lead levels with the names
and addresses of families receiving tenant-based rental assistance,
unless the public health department performs such a matching procedure.
If a match occurs, the designated party shall carry out the
requirements of this section.
Subparts N-Q--[Reserved]
Subpart R--Methods and Standards for Lead-Paint Hazard Evaluation
and Hazard Reduction Activities
Sec. 35.1300 Purpose and applicability.
The purpose of this subpart R is to provide standards and methods
for evaluation and hazard reduction activities required in subparts B,
C, D, and F through M of this part.
Sec. 35.1305 Definitions and other general requirements.
Definitions and other general requirements that apply to this
subpart are found in subpart B of this part.
Sec. 35.1310 References.
Further guidance information regarding evaluation and hazard
reduction activities described in this subpart is found in the
following:
(a) The HUD Guidelines for the Evaluation and Control of Lead-Based
Paint Hazards in Housing (Guidelines);
(b) The EPA Guidance on Residential Lead-Based Paint, Lead-
Contaminated Dust, and Lead Contaminated Soil;
(c) Guidance, methods or protocols issued by States and Indian
tribes that have been authorized by EPA under 40 CFR 745.324 to
administer and enforce lead-based paint programs.
Sec. 35.1315 Collection and laboratory analysis of samples.
All paint chip, dust, or soil samples shall be collected and
analyzed in accordance with standards established either by a State or
Indian tribe under a program authorized by EPA in accordance with 40
CFR part 745, subpart Q, or by the EPA in accordance with 40 CFR
745.227, and as further provided in this subpart.
Sec. 35.1320 Lead-based paint inspections and risk assessments.
(a) Lead-based paint inspections. Lead-based paint inspections
shall be performed in accordance with methods and standards established
either by a State or Indian tribe under a program authorized by EPA, or
by EPA at 40 CFR 745.227(b), except that the definition of lead-based
paint shall not include a loading (area concentration) or mass
concentration greater than that in the definition at Sec. 35.110 of
this part.
(b) Risk assessments. (1) Risk assessments shall be performed in
accordance with methods and standards established either by a State or
Indian tribe under a program authorized by EPA, or by EPA at 40 CFR
745.227(d), and paragraph (b)(2) of this section.
(2) Risk assessors shall use levels defining dust-lead hazards and
soil-lead hazards that are no greater than those promulgated by EPA
pursuant to section 403 of the Toxic Substances Control Act (15 U.S.C.
2683), or, if such levels are not in effect, the following for dust or
soil:
(i) Dust. A dust-lead hazard shall be a dust-lead level equal to or
greater than the applicable loading (area concentration), based on wipe
samples, in the following table:
Interim Dust Lead Standards
----------------------------------------------------------------------------------------------------------------
Surface
---------------- Interior
Floors, g/ft \2\
Evaluation method m>g/ft \2\ g/ (mg/m \2\)
(mg/m \2\) ft\2\ (mg/m
\2\)
----------------------------------------------------------------------------------------------------------------
Lead Hazard Screen......................... 25 (0.27) 125 (1.4) Not Applicable.
Risk Assessment............................ 40 (0.43) 250 (2.7) Not Applicable.
Reevaluation............................... 40 (0.43) 250 (2.7) Not Applicable.
Clearance.................................. 40 (0.43) 250 (2.7) 800 (8.6).
----------------------------------------------------------------------------------------------------------------
Note: ``Floors'' includes carpeted and uncarpeted interior floors.
(ii) Soil. (A) A soil-lead hazard for play areas frequented by
children under 6 years of age shall be bare soil with lead equal to or
exceeding 400 micrograms per gram.
(B) For other areas, soil-lead hazards shall be bare soil that
totals more than 9 square feet (0.8 square meters) per property with
lead equal to or exceeding 2,000 micrograms per gram.
(3) Lead hazard screens shall be performed in accordance with the
methods and standards established either by a State or Indian tribe
under a program authorized by EPA, or by EPA at 40 CFR 745.227(c), and
paragraph (b)(2) of this section. If the lead hazard screen indicates
the need for a follow-up risk assessment (e.g., if dust-lead
measurements exceed the levels established for lead hazard screens in
this section), a risk assessment shall be conducted in accordance with
paragraphs (b)(1) and (b)(2) of this section. Dust, soil, and paint
samples collected for the lead hazard screen may
[[Page 50219]]
be used in the risk assessment. If the lead hazard screen does not
indicate the need for a follow-up risk assessment, no further risk-
assessment is required.
(c) It is strongly recommended, but not required, that lead-based
paint inspectors and risk assessors provide a summary of the results
suitable for posting or distribution to occupants in compliance with
Sec. 35.125.
Sec. 35.1325 Abatement.
Abatement shall be performed in accordance with methods and
standards established either by a State or Indian tribe under a program
authorized by EPA, or by EPA at 40 CFR 745.227(e), and shall be
completed by achieving clearance in accordance with Sec. 35.1340. If
encapsulation or enclosure is used as a method of abatement, ongoing
lead-based paint maintenance activities shall be performed as required
by the applicable subpart of this part in accordance with Sec. 35.1355.
Abatement of an intact, factory-applied prime coating on metal surfaces
is not required unless the surface is a friction surface.
Sec. 35.1330 Interim controls.
Interim controls of lead-based paint hazards identified in a risk
assessment shall be conducted in accordance with the provisions of this
section. Interim control measures include paint stabilization of
deteriorated paint, treatments for friction and impact surfaces where
levels of lead dust are above the levels specified in Sec. 35.1320,
dust control, and lead-contaminated soil control. As provided by
Sec. 35.155, interim controls may be performed in combination with, or
be replaced by, abatement methods.
(a) General requirements. (1) Only those interim control methods
identified as acceptable methods in a current risk assessment report
shall be used to control identified hazards, except that, if only paint
stabilization is required in accordance with subparts F, H, K or M of
this part, it shall not be necessary to have conducted a risk
assessment.
(2) Occupants of dwelling units where interim controls are being
performed shall be protected during the course of the work in
accordance with Sec. 35.1345.
(3) Clearance testing shall be performed at the conclusion of
interim control activities in accordance with Sec. 35.1340.
(4) A person performing interim controls must be trained in
accordance with 29 CFR 1926.59 and either be supervised by an
individual certified as a lead-based paint abatement supervisor or have
successfully completed one of the following courses:
(i) A lead-based paint abatement supervisor course accredited in
accordance with 40 CFR 745.225;
(ii) A lead-based paint abatement worker course accredited in
accordance with 40 CFR 745.225;
(iii) The Lead-Based Paint Maintenance Training Program, ``Work
Smart, Work Wet, and Work Clean to Work Lead Safe,'' prepared by the
National Environmental Training Association for EPA and HUD;
(iv) ``The Remodeler's and Renovator's Lead-Based Paint Training
Program,'' prepared by HUD and the National Association of the
Remodeling Industry; or
(v) Another course approved by HUD for this purpose after
consultation with EPA.
(b) Paint stabilization. (1) Interim control treatments used to
stabilize deteriorated lead-based paint shall be performed in
accordance with the requirements of this section. Interim control
treatments of intact, factory applied prime coatings on metal surfaces
are not required. Finish coatings on such surfaces shall be treated by
interim controls if those coatings contain lead-based paint.
(2) Any physical defect in the substrate of a painted surface or
component that is causing deterioration of the surface or component
shall be repaired before treating the surface or component. Examples of
defective substrate conditions include dry-rot, rust, moisture-related
defects, crumbling plaster, and missing siding or other components that
are not securely fastened.
(3) Before applying new paint, all loose paint and other loose
material shall be removed from the surface to be treated. Acceptable
methods for preparing the surface to be treated include wet scraping,
wet sanding, and power sanding performed in conjunction with a HEPA
filtered local exhaust attachment operated according to the
manufacturer's instructions.
(4) Dry sanding or dry scraping is permitted only in accordance
with Sec. 35.140(e) (i.e., for electrical safety reasons or for
specified minor amounts of work).
(5) Paint stabilization shall include the application of a new
protective coating or paint. The surface substrate shall be dry and
protected from future moisture damage before applying a new protective
coating or paint. All protective coatings and paints shall be applied
in accordance with the manufacturer's recommendations.
(6) Paint stabilization shall incorporate the use of safe work
practices in accordance with Sec. 35.1350.
(c) Friction and impact surfaces. (1) Friction surfaces are
required to be treated only if:
(i) Lead dust levels on the nearest horizontal surface underneath
the friction surface (e.g., the window sill, window trough, or floor)
are equal to or greater than the standards specified in 35.1320(b);
(ii) There is evidence that the paint surface is subject to
abrasion; and
(iii) Lead-based paint is known or presumed to be present on the
friction surface.
(2) Impact surfaces are required to be treated only if:
(i) Paint on an impact surface is damaged or otherwise
deteriorated;
(ii) The damaged paint is caused by impact from a related building
component (such as a door knob that knocks into a wall, or a door that
knocks against its door frame); and
(iii) Lead-based paint is known or presumed to be present on the
impact surface.
(3) Examples of building components that may contain friction or
impact surfaces include the following:
(i) Window systems;
(ii) Doors;
(iii) Stair treads and risers;
(iv) Baseboards;
(v) Drawers and cabinets; and
(vi) Porches, decks, interior floors, and any other painted
surfaces that are abraded, rubbed, or impacted.
(4) Interim control treatments for friction surfaces shall
eliminate friction points or treat the friction surface so that paint
is not subject to abrasion. Examples of acceptable treatments include
rehanging and/or planing doors so that the door does not rub against
the door frame, and installing window channel guides that reduce or
eliminate abrasion of painted surfaces. Paint on stair treads and
floors shall be protected with a durable cover or coating that will
prevent abrasion of the painted surfaces. Examples of acceptable
materials include carpeting, tile, and sheet flooring.
(5) Interim control treatments for impact surfaces shall protect
the paint from impact. Examples of acceptable treatments include
treatments that eliminate impact with the paint surface, such as a door
stop to prevent a door from striking a wall or baseboard.
(6) Interim control for impact or friction surfaces does not
include covering such a surface with a coating or other treatment, such
as painting over the surface, that does not protect lead-based paint
from impact or abrasion.
[[Page 50220]]
(d) Chewable surfaces. (1) Chewable surfaces are required to be
treated only if there is evidence that a child of less than 6 years of
age has chewed on the painted surface, and lead-based paint is known or
presumed to be present on the surface.
(2) Interim control treatments for chewable surfaces shall make the
lead-based paint inaccessible for chewing by children of less than 6
years of age. Examples include enclosures or coatings that cannot be
penetrated by the teeth of such children.
(e) Dust-lead hazard control. (1) Interim control treatments used
to control dust-lead hazards shall be performed in accordance with the
requirements of this section. Additional information on dust removal is
found in the HUD Guidelines, particularly Chapter 11 (see
Sec. 35.1310).
(2) Dust control shall involve a thorough cleaning of all
horizontal surfaces, such as interior window sills, window troughs,
floors, and stairs, but excluding ceilings. All horizontal surfaces,
such as floors, stairs, window sills and window troughs, that are
rough, pitted, or porous shall be covered with a smooth, cleanable
covering or coating, such as metal coil stock, plastic, polyurethane,
or linoleum.
(3) Surfaces covered by a rug or carpeting shall be cleaned as
follows:
(i) The floor surface under a rug or carpeting shall be cleaned
where feasible, including upon removal of the rug or carpeting, with a
HEPA vacuum or other method of equivalent efficacy.
(ii) An unattached rug or an attached carpet that is to be removed,
and padding associated with such rug or carpet, located in an area of
the dwelling unit with dust-lead hazards on the floor, shall be
thoroughly vacuumed with a HEPA vacuum or other method of equivalent
efficacy. Protective measures shall be used to prevent the spread of
dust during removal of a rug, carpet or padding from the dwelling. For
example, it shall be misted to reduce dust generation during removal.
The item(s) being removed shall be wrapped or otherwise sealed before
removal from the worksite.
(iii) An attached carpet located in an area of the dwelling unit
with dust-lead hazards on the floor shall be thoroughly vacuumed with a
HEPA vacuum or other method of equivalent efficacy if it is not to be
removed.
(f) Soil-lead hazards. (1) Interim control treatments used to
control soil-lead hazards shall be performed in accordance with this
section.
(2) Soil with a lead concentration equal to or greater than 5,000
g/g of lead shall be abated in accordance with 40 CFR
745.227(e).
(3) Acceptable interim control methods for soil lead are
impermanent surface coverings and land use controls.
(i) Impermanent surface coverings may be used to treat lead-
contaminated soil if applied in accordance with the following
requirements. Examples of acceptable impermanent coverings include
gravel, bark, sod, and artificial turf.
(A) Impermanent surface coverings selected shall be designed to
withstand the reasonably-expected traffic. For example, if the area to
be treated is heavily traveled, neither grass or sod shall be used.
(B) When loose impermanent surface coverings such as bark or gravel
are used, they shall be applied in a thickness not less than six inches
deep.
(C) The impermanent surface covering material shall not contain
more than 200 g/g of lead.
(D) Adequate controls to prevent erosion shall be used in
conjunction with impermanent surface coverings.
(ii) Land use controls may be used to reduce exposure to soil-lead
hazards only if they effectively control access to areas with soil-lead
hazards. Examples of land use controls include: fencing, warning signs,
and landscaping.
(A) Land use controls shall be implemented only if residents have
reasonable alternatives to using the area to be controlled.
(B) If land use controls are used for a soil area that is subject
to erosion, measures shall be taken to contain the soil and control
dispersion of lead.
Sec. 35.1335 Standard treatments.
Standard treatments shall be conducted in accordance with this
section.
(a) Paint stabilization. All deteriorated paint on exterior and
interior surfaces located on the residential property shall be
stabilized in accordance with Sec. 35.1330(a)(b), or abated in
accordance with Sec. 35.1325.
(b) Smooth and cleanable horizontal surfaces. All horizontal
surfaces, such as uncarpeted floors, stairs, interior window sills and
window troughs, that are rough, pitted, or porous, shall be covered
with a smooth, cleanable covering or coating, such as metal coil stock,
plastic, polyurethane, or linoleum.
(c) Correcting dust-generating conditions. Conditions causing
friction or impact of painted surfaces shall be corrected in accordance
with Sec. 35.1330(c)(4)-(6).
(d) Bare residential soil. Bare soil shall be treated in accordance
with the requirements of Sec. 35.1330, unless it is found not to be a
soil-lead hazard in accordance with Sec. 35.1320(b).
(e) Safe work practices. All standard treatments described in
paragraphs (a) through (d) of this section shall incorporate the use of
safe work practices in accordance with Sec. 35.1350.
(f) Clearance. A clearance examination shall be performed in
accordance with Sec. 35.1340 at the conclusion of any lead hazard
reduction activities.
(g) Qualifications. An individual performing standard treatments
must meet the training and/or supervision requirements of
Sec. 35.1330(a)(4).
Sec. 35.1340 Clearance.
Clearance examinations required under subparts B, C, D, F through
M, and R, of this part shall be performed in accordance with the
provisions of this section.
(a) Clearance following abatement. Clearance examinations performed
following abatement of lead-based paint or lead-based paint hazards
shall be performed in accordance with 40 CFR 745.227(e) and paragraphs
(c)-(f) of this section. Such clearances shall be performed by a person
certified to perform risk assessments or lead-based paint inspections.
(b) Clearance following activities other than abatement. Clearance
examinations performed following interim controls, paint stabilization,
standard treatments, ongoing lead-based paint maintenance, or
rehabilitation shall be performed in accordance with the requirements
of this paragraph (b) and paragraphs (c)-(g) of this section.
(1) Qualified personnel. Clearance examinations shall be performed
by:
(i) A certified risk assessor;
(ii) A certified lead-based paint inspector;
(iii) A person who has successfully completed a training course for
clearance technicians (or a discipline of similar purpose and title)
that is developed or accepted by EPA or a State or tribal program
authorized by EPA pursuant to 40 CFR part 745, subpart Q, and that is
given by a training provider accredited by EPA or a State or Indian
tribe for training in lead-based paint inspection or risk assessment,
provided a certified risk assessor or a certified lead-based paint
inspector approves the work of the clearance technician and signs the
report of the clearance examination; or
(iv) A technician licensed or certified by EPA or a State or Indian
tribe to perform clearance examinations without the approval of a
certified risk assessor or certified lead-based paint inspector,
[[Page 50221]]
provided that a clearance examination by such a licensed or certified
technician shall be performed only for a single-family property or
individual dwelling units and associated common areas in a multi-unit
property, and provided further that a clearance examination by a such a
licensed or certified clearance technician shall not be performed using
random sampling of dwelling units or common areas in multifamily
properties, except that a clearance examination performed by such a
licensed or certified clearance technician is acceptable for any
residential property if the clearance examination is approved and the
report signed by a certified risk assessor or a certified lead-based
paint inspector.
(2) Required activities. (i) Clearance examinations shall include a
visual assessment, dust sampling, submission of samples for analysis
for lead, interpretation of sampling results, and preparation of a
report. Clearance examinations shall be performed in dwelling units,
common areas and exterior areas in accordance with this section and the
steps set forth at 40 CFR 745.227(e)(8). If clearance is being
performed for more than 10 dwelling units of similar construction and
maintenance, as in a multifamily property, random sampling for the
purposes of clearance may be conducted in accordance with 40 CFR
745.227(e)(9).
(ii) The visual assessment shall be performed to determine if
deteriorated paint surfaces and/or visible amounts of dust, debris,
paint chips or other residue are still present. Both exterior and
interior painted surfaces shall be examined for the presence of
deteriorated paint. If deteriorated paint or visible dust, debris or
residue are present in areas subject to dust sampling, they must be
eliminated prior to the continuation of the clearance examination,
except elimination of deteriorated paint is not required if it has been
determined, through paint testing or a lead-based paint inspection,
that the deteriorated paint is not lead-based paint. If exterior
painted surfaces have been disturbed by the hazard reduction,
maintenance or rehabilitation activity, the visual assessment shall
include an assessment of the ground and any outdoor living areas close
to the affected exterior painted surfaces. Visible dust or debris in
living areas shall be cleaned up and visible paint chips on the ground
shall be removed.
(iii) Dust samples shall be wipe samples and shall be taken on
floors and, where practicable, interior window sills and window
troughs. Dust samples shall be collected and analyzed in accordance
with Sec. 35.1315 of this part.
(iv) Clearance reports shall be prepared in accordance with
paragraph (c) of this section.
(c) Clearance report. When clearance is required, the designated
party shall ensure that a clearance report is prepared that provides
documentation of the hazard reduction or maintenance activity as well
as the clearance examination. When abatement is performed, the report
shall be an abatement report in accordance with 40 CFR 745.227(e)(10).
When another hazard reduction or maintenance activity requiring a
clearance report is performed, the report shall include the following
information:
(1) The address of the residential property and, if only part of a
multifamily property is affected, the specific dwelling units and
common areas affected.
(2) The following information on the clearance examination:
(i) The date(s) of the clearance examination;
(ii) The name, address, and signature of each person performing the
clearance examination, including certification number;
(iii) The results of the visual assessment for the presence of
deteriorated paint and visible dust, debris, residue or paint chips;
(iv) The results of the analysis of dust samples, in g/
sq.ft., by location of sample; and
(v) The name and address of each laboratory that conducted the
analysis of the dust samples, including the identification number for
each such laboratory recognized by EPA under section 405(b) of the
Toxic Substances Control Act (15 U.S.C. 2685(b)).
(3) The following information on the hazard reduction or
maintenance activity for which clearance was performed:
(i) The start and completion dates of the hazard reduction or
maintenance activity;
(ii) The name and address of each firm or organization conducting
the hazard reduction or maintenance activity and the name of each
supervisor assigned;
(iii) A detailed written description of the hazard reduction or
maintenance activity, including the methods used, locations of exterior
surfaces, interior rooms, common areas, and/or components where the
hazard reduction activity occurred, and any suggested monitoring of
encapsulants or enclosures; and
(iv) If soil hazards were reduced, a detailed description of the
location(s) of the hazard reduction activity and the method(s) used.
(d) Standards. The clearance standards in Sec. 35.1320(b)(2) shall
apply. If test results equal or exceed the standards, the dwelling
unit, worksite, or common area represented by the sample fails the
clearance examination.
(e) Clearance failure. All surfaces represented by a failed
clearance sample shall be recleaned or treated by hazard reduction, and
retested, until the applicable clearance level in Sec. 35.1320(b)(2) is
met.
(f) Independence. Clearance examinations shall be performed by
persons or entities independent of those performing hazard reduction or
maintenance activities, unless the designated party uses qualified in-
house employees to conduct clearance. An in-house employee shall not
conduct both a hazard reduction or maintenance activity and its
clearance examination.
(g) Worksite clearance. When clearance is of an interior worksite,
not an entire dwelling unit or residential property, dust samples taken
for paragraph (b) of this section shall be taken from the floor and
window (if available) to represent the area within the dust containment
area. Clearance is not required if maintenance or hazard reduction
activities in the worksite do not disturb painted surfaces of a total
area more than that set forth in Sec. 35.1350(d)
Sec. 35.1345 Occupant protection and worksite preparation.
This section establishes procedures for protecting dwelling unit
occupants and the environment from contamination from lead-contaminated
or lead-containing materials during hazard reduction activities.
(a) Occupant protection. (1) Occupants shall not be permitted to
enter the worksite during hazard reduction activities (unless they are
employed in the conduct of these activities at the worksite), until
after hazard reduction work has been completed and clearance, if
required, has been achieved.
(2) Occupants shall be temporarily relocated before and during
hazard reduction activities to a suitable, decent, safe, and similarly
accessible dwelling unit that does not have lead-based paint hazards,
except if:
(i) Treatment will not disturb lead-based paint, dust-lead hazards
or soil-lead hazards;
(ii) Only the exterior of the dwelling unit is treated, and
windows, doors, ventilation intakes and other openings in or near the
worksite are sealed during hazard control work and cleaned
[[Page 50222]]
afterward, and entry free of dust-lead hazards, soil-lead hazards, and
debris is provided;
(iii) Treatment of the interior will be completed within one period
of 8-daytime hours, the worksite is contained so as to prevent the
release of leaded dust and debris into other areas, and treatment does
not create other safety, health or environmental hazards (e.g., exposed
live electrical wiring, release of toxic fumes, or on-site disposal of
hazardous waste); or
(iv) Treatment of the interior will be completed within 5 calendar
days, the worksite is contained so as to prevent the release of leaded
dust and debris into other areas, treatment does not create other
safety, health or environmental hazards; and, at the end of work on
each day, the worksite and the area within at least 10 feet (3 meters)
of the containment area is cleaned to remove any visible dust or
debris, and occupants have safe access to sleeping areas, and bathroom
and kitchen facilities.
(3) The dwelling unit and the worksite shall be secured against
unauthorized entry, and occupants' belongings protected from
contamination by dust-lead hazards and debris during hazard reduction
activities. Occupants' belongings in the containment area shall be
relocated to a safe and secure area outside the containment area, or
covered with an impermeable covering with all seams and edges taped or
otherwise sealed.
(b) Worksite preparation. (1) The worksite shall be prepared to
prevent the release of leaded dust, and contain lead-based paint chips
and other debris from hazard reduction activities within the worksite
until they can be safely removed. Practices that minimize the spread of
leaded dust, paint chips, soil and debris shall be used during worksite
preparation.
(2) A warning sign shall be posted at each entry to a room where
hazard reduction activities are conducted when occupants are present;
or at each main and secondary entryway to a building from which
occupants have been relocated; or, for an exterior hazard reduction
activity, where it is easily read 20 feet (6 meters) from the edge of
the hazard reduction activity worksite. Each warning sign shall be as
described in 29 CFR 1926.62(m), except that it shall be posted
irrespective of employees' lead exposure and, to the extent
practicable, provided in the occupants' primary language.
Sec. 35.1350 Safe work practices.
(a) Prohibited methods. Methods of paint removal listed in
Sec. 35.140 shall not be used.
(b) Occupant protection and worksite preparation. Occupants and
their belongings shall be protected, and the worksite prepared, in
accordance with Sec. 35.1345.
(c) Specialized cleaning. After hazard reduction activities have
been completed, the worksite shall be cleaned using cleaning methods,
products, and devices that are successful in cleaning up dust-lead
hazards, such as a HEPA vacuum or other method of equivalent efficacy,
and lead-specific detergents or equivalent.
(d) De minimis levels. Safe work practices are not required when
maintenance or hazard reduction activities do not disturb painted
surfaces that total more than:
(1) 20 square feet (2 square meters) on exterior surfaces;
(2) 2 square feet (0.2 square meters) in any one interior room or
space; or
(3) 10 percent of the total surface area on an interior or exterior
type of component with a small surface area. Examples include window
sills, baseboards, and trim.
Sec. 35.1355 Ongoing lead-based paint maintenance and reevaluation
activities.
(a) Maintenance. Maintenance activities shall be conducted in
accordance with paragraphs (a)(2)-(6) of this section, except as
provided in paragraph (a)(1) of this section.
(1) Maintenance activities need not be conducted in accordance with
this section if both of the following conditions are met, as
applicable:
(i) Either a lead-based paint inspection indicates that no lead-
based paint is present in the dwelling units, common areas, and on
exterior surfaces, or a clearance report prepared in accordance with
Sec. 35.1340(a) indicates that all lead-based paint has been removed;
and
(ii) If a risk assessment is required by the applicable subpart of
this part, a current risk assessment indicates that no soil-lead
hazards and no dust-lead hazards are present.
(2) A visual assessment for deteriorated paint, bare soil, and the
failure of any hazard reduction measures shall be performed at unit
turnover and every twelve months.
(3) (i) Deteriorated paint. All deteriorated paint on interior and
exterior surfaces located on the residential property shall be
stabilized in accordance with Sec. 35.1330(a)(b), except for any paint
that an evaluation has found is not lead-based paint.
(ii) Bare soil. All bare soil shall be treated with standard
treatments in accordance with Sec. 35.1335(d) through (g), or interim
controls in accordance with Sec. 35.1330(a) and (f); except for any
bare soil that a current evaluation has found is not a soil-lead
hazard.
(4) Safe work practices, in accordance with sec. 35.1350, shall be
used when performing any maintenance or renovation work that disturbs
paint that may be lead-based paint.
(5) Any encapsulation or enclosure of lead-based paint or lead-
based paint hazards which has failed to maintain its effectiveness
shall be repaired, or abatement or interim controls shall be performed
in accordance with Secs. 35.1325 or 35.1330, respectively.
(6) Clearance testing of the worksite shall be performed at the
conclusion of repair, abatement or interim controls in accordance with
Sec. 35.1340.
(7) Each dwelling unit shall be provided with written notice asking
occupants to report deteriorated paint and, if applicable, failure of
encapsulation or enclosure, along with the name, address and telephone
number of the person whom occupants should contact. The language of the
notice shall be in accordance with Sec. 35.125(c)(3). The designated
party shall respond to such report and stabilize the deteriorated paint
or repair the encapsulation or enclosure within 30 days.
(b) Reevaluation. Reevaluation shall be conducted in accordance
with this paragraph (b), and the designated party shall conduct interim
controls of lead-based paint hazards found in the reevaluation.
(1) Reevaluation shall be conducted if hazard reduction has been
conducted to reduce lead-based paint hazards found in a risk assessment
or if standard treatments have been conducted, except that reevaluation
is not required if any of the following cases are met:
(i) An initial risk assessment found no lead-based paint hazards;
(ii) A lead-based paint inspection found no lead-based paint; or
(iii) All lead-based paint was abated in accordance with
Sec. 35.1325, provided that no failures of encapsulations or enclosures
have been found during visual assessments conducted in accordance with
Sec. 35.1355(a)(2) or during other observations by maintenance and
repair workers in accordance with Sec. 35.1355(a)(5) since the
encapsulations or inclosures were performed.
(2) Reevaluation shall be conducted to identify:
(i) Deteriorated paint surfaces with known or suspected lead-based
paint;
[[Page 50223]]
(ii) Deteriorated or failed interim controls of lead-based paint
hazards or encapsulation or enclosure treatments;
(iii) Dust-lead hazards; and
(iv) Soil that is newly bare with lead levels equal to or above the
standards in Sec. 35.1320(b)(2).
(3) Each reevaluation shall be performed by a certified risk
assessor.
(4) Each reevaluation shall be conducted in accordance with the
following schedule if a risk assessment or other evaluation has found
deteriorated lead-based paint in the residential property, a soil-lead
hazard, or a dust-lead hazard on a floor or interior window sill.
(Window troughs are not sampled during reevaluation). The first
reevaluation shall be conducted no later than two years from completion
of hazard reduction. Subsequent reevaluation shall be conducted at
intervals of two years, plus or minus 60 days. To be exempt from
additional reevaluation, at least two consecutive reevaluations
conducted at such two-year intervals must be conducted without finding
lead-based paint hazards or a failure of an encapsulation or enclosure.
If, however, a reevaluation finds lead-based paint hazards or a
failure, at least two more consecutive reevaluations conducted at such
two year intervals must be conducted without finding lead-based paint
hazards or a failure.
(5) Each reevaluation shall be performed as follows:
(i) Dwelling units and common areas shall be selected and
reevaluated in accordance with Sec. 35.1320(b).
(ii) The worksites of previous hazard reduction activities that are
similar on the basis of their original lead-based paint hazard and type
of treatment shall be grouped. Worksites within such groups shall be
selected and reevaluated in accordance with Sec. 35.1320(b).
(6) Each reevaluation shall include reviewing available
information, conducting selected visual assessment, recommending
responses to hazard reduction omissions or failures, performing
selected evaluation of paint, soil and dust, and recommending response
to newly-found lead-based paint hazards.
(i) Review of available information. The risk assessor shall review
any available past evaluation, hazard reduction and clearance reports,
and any other available information describing hazard reduction
measures, ongoing maintenance activities, and relevant building
operations.
(ii) Visual assessment. The risk assessor shall:
(A) Visually evaluate all lead-based paint hazard reduction
treatments, any known or suspected lead-based paint, any deteriorated
paint, and each exterior site, and shall identify any new areas of bare
soil;
(B) Determine acceptable options for controlling the hazard; and
(C) Await the correction of any hazard reduction omission or
failure and the reduction of any lead-based paint hazard before
sampling any dust or soil the risk assessor determines may reasonably
be associated with such hazard.
(iii) Reaction to hazard reduction omission or failure. If any
hazard reduction control has not been implemented or is failing (e.g.,
an encapsulant is peeling away from the wall, a paint-stabilized
surface is no longer intact, or gravel covering an area of bare soil
has worn away), or deteriorated lead-based paint is present, the risk
assessor shall:
(A) Determine acceptable options for controlling the hazard; and
(B) Await the correction of any hazard reduction omission or
failure and the reduction of any lead-based paint hazard before
sampling any dust or soil the risk assessor determines may reasonably
be associated with such hazard.
(iv) Selected paint, soil and dust evaluation. (A) The risk
assessor shall sample deteriorated paint surfaces identified during the
visual assessment and have the samples analyzed, in accordance with 40
CFR 745.227(b)(3)(4), but only if reliable information about lead
content is unavailable.
(B) The risk assessor shall evaluate new areas of bare soil
identified during the visual assessment. Soil samples shall be
collected and analyzed in accordance with 40 CFR 745.227(d)(8)-(11),
but only if the soil lead levels have not been previously measured.
(C) The risk assessor shall take selected dust samples and have
them analyzed. Dust samples shall be collected and analyzed in
accordance with Sec. 35.1320(b). At least two composite samples, one
from floors and the other from interior window sills, shall be taken in
each dwelling unit and common area selected. Each composite sample
shall consist of four individual samples, each collected from a
different room or area. If the dwelling unit contains both carpeted and
uncarpeted living areas, separate floor samples are required from the
carpeted and uncarpeted areas. Equivalent single-surface sampling may
be used instead of composite sampling.
(7) The risk assessor shall provide the designated party with a
written report documenting the presence or absence of lead-based paint
hazards, the current status of any hazard reduction and standard
treatment measures used previously and any newly-conducted evaluation
and hazard reduction activities. The report shall include the
information in 40 CFR 745.227(d)(11), and shall:
(i) Identify any lead-based paint hazards previously detected and
discuss the effectiveness of any hazard reduction or standard treatment
measures used, and list those for which no measures have been used.
(ii) Describe any new hazards found and present the owner with
acceptable control options and their accompanying reevaluation
schedules.
(iii) Identify when the next reevaluation, if any, must occur, in
accordance with the requirements of paragraph (b)(4) of this section.
(c) Response to the reevaluation. (1) Hazard reduction omission or
failure found by a reevaluation. The designated party shall respond in
accordance with paragraph (b)(6)(iii)(A) of this section to a report by
the risk assessor of a hazard reduction control that has not been
implemented or is failing, or that deteriorated lead-based paint is
present.
(2) Newly-identified lead-based paint hazard found by a
reevaluation. The designated party shall treat each:
(i) Dust-lead hazard or paint lead hazard by cleaning or hazard
reduction measures, which are considered completed when clearance is
achieved in accordance with Sec. 35.1340.
(ii) Soil-lead hazard by hazard reduction measures, which are
considered completed when clearance is achieved in accordance with
Sec. 35.1340.
PART 91--CONSOLIDATED SUBMISSIONS FOR COMMUNITY PLANNING AND
DEVELOPMENT PROGRAMS
4. The authority citation for part 91 continues to read as follows:
Authority: 42 U.S.C 3535(d), 3601-3619, 5301-5315, 11331-11388,
12701-12711, 12741-12756, 12901-12912.
5. Revise Sec. 91.2(b)(15) to read as follows:
Sec. 91.2 Applicability.
* * * * *
(b) * * *
(15) The ``Lead-Based Paint Hazard Reduction Program (see 42 U.S.C.
4852(o));''
* * * * *
6. In Sec. 91.5, revise the definition of ``Lead-based paint
hazards'' to read as follows:
Sec. 91.5 Definitions.
* * * * *
[[Page 50224]]
Lead-based paint hazards means lead-based paint hazards as defined
in part 35, subpart B of this title.
* * * * *
7. Revise Sec. 91.225(b)(7) to read as follows:
Sec. 91.225 Certifications.
* * * * *
(b) * * *
(7) Compliance with lead-based paint procedures. The jurisdiction
must submit a certification that its activities concerning lead-based
paint will comply with the requirements of part 35, subparts A, B, J,
K, and R of this title.
* * * * *
PART 92--HOME INVESTMENT PARTNERSHIPS PROGRAM
8. The authority citation for part 92 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 12701-12839.
9. Revise Sec. 92.206(a)(2)(ii) to read as follows:
Sec. 92.206 Eligible project costs.
* * * * *
(a) * * *
(2) * * *
(ii) To make essential improvements, including energy-related
repairs or improvements, improvements necessary to permit use by
persons with disabilities, and lead-based paint activities, as required
by part 35 of this title.
* * * * *
10. Revise Sec. 92.355 to read as follows:
Sec. 92.355 Lead-based paint.
Housing assisted with HOME funds is subject to the Lead-Based Paint
Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-
Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and
implementing regulations at part 35, subparts A, B, J, K, M and R of
this title.
11. Revise Sec. 92.504(c)(3)(iv) to read as follows:
Sec. 92.504 Participating jurisdiction responsibilities; written
agreements; on-site inspection.
* * * * *
(c) * * *
(3) * * *
(iv) Property standards. The agreement must require the housing to
meet the property standards in Sec. 92.251 and the lead-based paint
requirements in part 35, subparts A, B, J, K, M and R of this title,
upon project completion. The agreement must also require owners of
rental housing assisted with HOME funds to maintain the housing
compliance with Sec. 92.251 for the duration of the affordability
period.
* * * * *
12. Revise Sec. 92.508(a)(7)(vi) to read as follows:
Sec. 92.508 Recordkeeping.
* * * * *
(a) * * *
(7) * * *
(vi) Records demonstrating compliance with the lead-based paint
requirements of part 35, subparts A, B, J, K, M and R of this title.
* * * * *
PART 200--INTRODUCTION TO FHA PROGRAMS
13. The authority citation for part 200 continues to read as
follows:
Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 3535(d).
14. Revise subpart O to read as follows:
Subpart O--Lead-Based Paint Poisoning Prevention
Sec.
200.800 Lead-based paint.
200.805 Definitions.
200.810 Single family insurance and coinsurance.
Subpart O--Lead-Based Paint Prevention
Sec. 200.800 Lead-based paint.
The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, F, G, I, and R of this title, apply to activities under
these programs, except for single family mortgage insurance and
guarantee programs. Sections 200.805 and 200.810 apply to single family
mortgage insurance and guarantee programs administered by HUD.
Sec. 200.805 Definitions.
Applicable surface. All intact and nonintact interior and exterior
painted surfaces of a residential structure.
Defective paint surface. Paint on applicable surfaces that is
cracking, scaling, chipping, peeling or loose.
Lead-based paint surface. A paint surface, whether or not
defective, identified as having a lead content greater than or equal to
1 mg/cm\2\.
Sec. 200.810 Single family insurance and coinsurance.
(a) General. (1) The requirements of this section apply to any one-
to four-family dwelling which was constructed before 1978 and is the
subject of an application for mortgage insurance under section 203(b)
or other sections of the National Housing Act relating to the insurance
or coinsurance of mortgages on one-to-four-family dwellings. Such other
sections include:
(i) Section 244 (coinsurance);
(ii) Section 213 (cooperative housing insurance);
(iii) Section 220 (rehabilitation and neighborhood conservation
housing insurance);
(iv) Section 221 (housing for moderate income and displaced
families);
(v) Section 222 (mortgagor insurance for servicemen);
(vi) Section 809 (armed services housing for civilian employees);
(vii) Section 810 (armed services housing in impacted areas);
(viii) Section 234 (mortgage insurance for condominiums);
(ix) Section 235 (mortgage assistance payments for home ownership
and project rehabilitation);
(x) Section 237 (special mortgage insurance for low and moderate
income families); and
(xi) Section 240 (mortgage insurance on loans for purchase of fee
simple title from lessors).
(2) This section is also applicable to single family mortgage
insurance on Indian reservations (12 U.S.C. 1715z-13) and loan
guarantees for Indian housing (25 U.S.C. 4191).
(3) Applications for insurance in connection with a refinancing
transaction where an appraisal is not required under the applicable
procedures established by the Commissioner are excluded from the
coverage of this section. Any housing assisted under the programs set
out in this section for which no new activity is applied for or
required is not covered by this section.
(b) Appraisal. The appraiser shall, when appraising a dwelling
constructed prior to 1978, inspect the dwelling for defective paint
surfaces.
(c) Treatment of defective paint surfaces. For defective paint
surfaces, treatment shall be provided to defective areas. Treatment of
hazards shall consist of covering or removing defective paint surfaces.
Covering may be accomplished by such means as adding a layer of
wallboard to the wall surface. Depending on the wall condition,
wallcoverings which are permanently attached may be used. Covering or
replacing trim surfaces is also permitted. Paint removal may be
accomplished by such methods as scraping, heat treatment (infra-red or
coil type heat guns) or chemicals. Machine sanding and use of propane
or
[[Page 50225]]
gasoline torches (open-flame methods) are not permitted. Washing and
repainting without thorough removal or covering does not constitute
adequate treatment. In the case of defective paint spots, scraping and
repainting the defective area is considered adequate treatment.
Treatment of a defective paint surface is not required if such a
surface is found to not be a lead-based paint surface by a lead-based
paint inspector certified pursuant to procedures of the U.S.
Environmental Protection Agency at 40 CFR part 745.
(d) Home equity conversion mortgage insurance. The requirements of
this section, as modified by the following sentence, apply to a
dwelling which is the subject of an application for mortgage insurance
under section 255 of the National Housing Act (home equity conversion
insurance) unless the mortgagor provides the certification described in
Sec. 206.45(d) of this title. The defective paint surface may be
treated after the mortgage is endorsed for insurance, provided that the
defective paint surface is treated as expeditiously as possible in
accordance with the repair work provisions contained in Sec. 206.47 of
this title
PART 203--SINGLE FAMILY MORTGAGE INSURANCE
15. The authority citation for part 203 continues to read as
follows:
Authority: 12 U.S.C. 1709, 1710, 1715b, and 1715u; 42 U.S.C.
3535(d).
16. In Sec. 203.673, revise paragraphs (a) and (c) to read as
follows:
Sec. 203.673 Habitability.
(a) For purposes of Sec. 203.670, a property is habitable if it
meets the requirements of this section in its present condition, or
will meet these requirements with the expenditure of not more than five
percent of the fair market value of the property. The cost of hazard
reduction or abatement of lead-based paint hazards in the property, as
required by the Lead-Based Paint Poisoning Prevention Act (42 U.S.C.
4821-4846), and the Residential Lead-Based Paint Hazard Reduction Act
of 1992 (42 U.S.C. 4851-4856), and implementing regulations in part 35
of this title, is excluded from these repair cost limitations.
* * * * *
(c) If repairs, including lead-based paint hazard reduction or
abatement, are to be made while the property is occupied, the occupant
must hold the Secretary and the Department harmless against any
personal injury or property damage that may occur during the process of
making repairs. If temporary relocation of the occupant is necessary
during repairs, no reimbursement for relocation expenses will be
provided to the occupant.
PART 280--NEHEMIAH HOUSING OPPORTUNITY GRANTS PROGRAM
17. The authority citation for part 280 continues to read as
follows:
Authority: 12 U.S.C. 1715l note; 42 U.S.C. 3535(d).
18. Revise Sec. 280.25(e) to read as follows:
Sec. 280.25 Other Federal requirements.
* * * * *
(e) Lead-based paint. The Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, K, and R, of this title apply to
the program.
* * * * *
PART 291--DISPOSITION OF HUD-ACQUIRED SINGLE FAMILY PROPERTY
19. The authority citation for part 291 continues to read as
follows:
Authority: 12 U.S.C. 1701 et seq.; 42 U.S.C. 1441, 1441a, and
3535(d).
20. Revise Sec. 291.100(g) to read as follows:
Sec. 291.100 General policy.
* * * * *
(g) Lead-based paint poisoning prevention. Properties constructed
before 1978 are subject to the requirements of the Lead-Based Paint
Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-
Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and
implementing regulations at part 35, subparts A, B, F, and R, of this
title.
* * * * *
21. Revise Sec. 291.430 to read as follows:
Sec. 291.430 Elimination of lead-based paint hazards.
The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, F, and R of this title, apply activities covered by this
subpart.
PART 511--RENTAL REHABILITATION GRANT PROGRAM
22. The authority citation for 24 CFR part 511 continues to read as
follows:
Authority: 42 U.S.C. 1437o and 3535(d).
23. Revise Sec. 511.10(f)(1)(ii) to read as follows:
Sec. 511.10 General requirements.
* * * * *
(f) * * *
(1) * * *
(ii) Make essential improvements, as reasonably defined by the
grantee or State recipient in its rehabilitation standards adopted
under Sec. 511.10(e), including energy-related repairs, improvements
necessary to permit the use of rehabilitated projects by handicapped
persons, and activities of lead based paint hazards, as required by
part 35 of this title;
* * * * *
24. Revise Sec. 511.15 to read as follows:
Sec. 511.15 Lead-based paint.
The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, J, K, and R of this title apply to activities under
these programs.
PART 570--COMMUNITY DEVELOPMENT BLOCK GRANTS
25. The authority citation for part 570 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 5300-5320.
26. Revise Sec. 570.202(f) to read as follows:
Sec. 570.202 Eligible rehabilitation and preservation activities.
* * * * *
(f) Lead-based paint activities. Lead-based paint activities as set
forth in part 35 of this title.
27. Revise Sec. 570.461 to read as follows:
Sec. 570.461 Post-preliminary approval requirements; lead-based paint.
The recipient may receive preliminary approval prior to the
accomplishment of lead-based paint activities conducted pursuant to
part 35, subparts A, B, J, K, and R of this title, but no funds will be
released until such actions are complete and evidence of compliance is
submitted to HUD.
28. Revise Sec. 570.487(c) to read as follows:
Sec. 570.487 Other applicable laws and related program requirements.
* * * * *
(c) Lead-Based Paint Poisoning Prevention Act. States shall devise,
adopt and carry out procedures with
[[Page 50226]]
respect to CDBG assistance that fulfill the objectives and requirements
of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-4846),
the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42
U.S.C. 4851-4856), and implementing regulations at part 35, subparts A,
B, J, K, and R of this title.
* * * * *
29. Revise Sec. 570.608 to read as follows:
Sec. 570.608 Lead-based paint.
The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, J, K, and R of this part apply to activities under this
program.
PART 572--HOPE FOR HOMEOWNERSHIP OF SINGLE FAMILY HOMES PROGRAM
(HOPE 3)
30. The authority citation for part 572 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 12891.
31. Revise Sec. 572.100(d)(1) to read as follows:
Sec. 572.100 Acquisition and rehabilitation of eligible properties;
rehabilitation standards.
* * * * *
(d) * * *
(1) The recipient is responsible to assure that rehabilitation of
eligible property meets local codes applicable to rehabilitation of
work in the jurisdiction (but not less than the housing quality
standards established under the Section 8 rental voucher program,
described in Sec. 982.401 of this title). Rehabilitation must also
include work necessary to meet applicable federal requirements,
including lead-based paint requirements set forth at part 35, subparts
A, B, J, K, and R of this title.
* * * * *
32. Revise Sec. 572.215(e) to read as follows:
Sec. 572.215 Implementation grants-eligible activities.
* * * * *
(e) Architectural and engineering work. Architectural and
engineering work, and related professional services required to prepare
architectural plans or drawings, write-ups, specifications or
inspections, including lead-based paint evaluation.
* * * * *
33. Revise Sec. 572.420(h) to read as follows:
Sec. 572.420 Miscellaneous requirements.
* * * * *
(h) Lead-based paint activities. The Lead-Based Paint Poisoning
Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint
Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, J, K and R of this title apply
to activities under these programs.
PART 573--LOAN GUARANTEE RECOVERY FUND
34. The authority citation for part 573 continues to read as
follows:
Authority: Pub. L. 104-155, 110 Stat. 1392, 18 U.S.C. 241 note;
42 U.S.C. 3535(d).
35. Revise Sec. 573.9(c) to read as follows:
Sec. 573.9 Other requirements.
* * * * *
(c) Lead-based paint. Housing assisted under this part is subject
to the lead-based paint requirements described in part 35, subparts A,
B, E, G, and R of this title.
* * * * *
PART 574--HOUSING OPPORTUNITIES FOR PEOPLE WITH AIDS
36. The authority citation for part 574 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 12901-12912.
37. Revise Sec. 574.635 to read as follows:
Sec. 574.635 Lead-based paint.
The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, H, J, K, M, and R of this part apply to activities under
this program.
PART 576--EMERGENCY SHELTER GRANTS PROGRAM: STEWART B. McKINNEY
HOMELESS ASSISTANCE ACT
38. The authority citation for part 576 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11376.
39. Revise Sec. 576.57(c) to read as follows:
Sec. 576.57 Other Federal Requirements.
* * * * *
(c) The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, J, K, and R of this title apply to activities under this
program.
* * * * *
PART 582--SHELTER PLUS CARE
40. The authority citation for part 582 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11403-11407b.
41. Revise the first sentence of Sec. 582.305(a) to read as
follows:
Sec. 582.305 Housing quality standards; rent reasonableness.
(a) Housing quality standards. Housing assisted under this part
must meet the applicable housing quality standards (HQS) under
Sec. 982.401 of this title--except that Sec. 982.401(j) of this title
does not apply and instead part 35, subparts A, B, K and R of this
title apply--and, for SRO under Sec. 882.803(b) of this title. * * *
* * * * *
PART 583--SUPPORTIVE HOUSING PROGRAM
42. The authority citation for part 583 continues to read as
follows:
Authority: 42 U.S.C. 11389 and 3535(d).
43. Revise Sec. 583.330(d) to read as follows:
Sec. 583.330 Applicability of other Federal requirements.
* * * * *
(d) Lead-based paint. The Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, J, K, and R of this title apply
to activities under this program.
* * * * *
PART 585--YOUTHBUILD PROGRAM
44. The authority citation for part 585 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 8011.
45. Revise Sec. 585.305(d) to read as follows:
Sec. 585.305 Eligible activities.
* * * * *
(d) Rehabilitation of housing and related facilities to be used for
the purposes of providing homeownership, residential rental housing, or
transitional housing for the homeless and low- and very low-income
persons and families, including lead-based paint
[[Page 50227]]
activities; in accordance with part 35 of this title;
* * * * *
46. Revise Sec. 585.502(h) to read as follows:
Sec. 585.502 Certifications.
* * * * *
(h) Lead-based paint. A certification that the applicant will
comply with the requirements of the Lead-Based Paint Poisoning
Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint
Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, J, K, and R of this title.
* * * * *
PART 761--DRUG ELIMINATION PROGRAMS
47. The authority citation for part 761 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 11901 et seq.
48. Revise Sec. 761.40(c) to read as follows:
Sec. 761.40 Other Federal requirements.
* * * * *
(c) Lead-based paint. The Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, H, and R of this title.
* * * * *
PART 881--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM FOR
SUBSTANTIAL REHABILITATION
49. The authority citation for part 881 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), 12701, and
13611-13619.
50. Revise Sec. 881.207(e) to read as follows:
Sec. 881.207 Property standards.
* * * * *
(e) The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, H, and R of this title; and
* * * * *
PART 882--SECTION 8 MODERATE REHABILITATION PROGRAMS
51. The authority citation for part 882 continues to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
52. Revise Sec. 882.404(d) to read as follows:
Sec. 882.404 Physical condition standards; physical inspection
requirements.
* * * * *
(d) Lead-based paint. The Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, H, and R of this title apply to
the Section 8 moderate rehabilitation program.
53. Revise Sec. 882.507(b)(2)(iv) to read as follows:
Sec. 882.507 Completion of rehabilitation.
* * * * *
(b) * * *
(2) * * *
(iv) The unit(s) are in compliance with part 35, subparts A, B, H,
and R of this title.
* * * * *
54. Revise Sec. 882.514(d)(1)(vi) to read as follows:
Sec. 882.514 Family participation.
* * * * *
(d) * * *
(1) * * *
(vi) The advisability and availability of blood lead level
screening for children under 6 years of age and HUD's lead-based paint
requirements in part 35, subparts A, B, H, and R of this title.
* * * * *
55. Revise Sec. 882.803(b)(1) to read as follows:
Sec. 882.803 Project eligibility and other requirements.
* * * * *
(b)(1) Physical condition standards. Section 882.404 applies to
this program.
* * * * *
PART 883--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--STATE
HOUSING AGENCIES
56. The authority citation for part 883 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f, 3535(d), and 13611-
13619.
57. Revise Sec. 883.310(b)(5) to read as follows:
Sec. 883.310 Property standards.
* * * * *
(b) * * *
(5) The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, H, and R of this title.
* * * * *
PART 886--SECTION 8 HOUSING ASSISTANCE PAYMENTS PROGRAM--SPECIAL
ALLOCATIONS
58. The authority citation for part 886 continues to read as
follows:
Authority: 42 U.S.C. 1437a, 1437c, 1437f and 3535(d) and 13611-
13619.
59. Revise Sec. 886.113(i) to read as follows:
Sec. 886.113 Physical condition standard; physical inspection
requirements.
* * * * *
(i) Lead based paint. The Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, H, and R of this title apply to
activities under this program.
* * * * *
60. Revise Sec. 886.307(i) to read as follows:
Sec. 886.307 Physical condition standards; physical inspection
requirement.
* * * * *
(i) Lead-based paint. The Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, H, and R of this title apply to
activities under this program.
* * * * *
61. Revise Sec. 886.333(b)(2)(iv) to read as follows:
Sec. 886.333 Completion of rehabilitation.
* * * * *
(b) * * *
(2) * * *
(iv) The project was in compliance with applicable HUD lead-based
paint regulations at part 35, subparts A, B, H, and R of this title.
* * * * *
PART 891--SECTION 8--SUPPORTIVE HOUSING FOR THE ELDERLY AND PERSONS
WITH DISABILITIES
62. The authority citation for part 891 continues to read as
follows:
Authority: 12 U.S.C. 1701q; 42 U.S.C. 1437f, 3535(d) and 8013.
63. Revise Sec. 891.155(g) to read as follows:
Sec. 891.155 Other Federal requirements.
* * * * *
(g) Lead-based paint. The requirements of the Lead-Based Paint
[[Page 50228]]
Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-
Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and
implementing regulations at part 35, subparts A, B, H, and R of this
title apply to these programs.
64. Revise Sec. 891.325 to read as follows:
Sec. 891.325 Lead-based paint requirements.
The requirements of the Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, H, and R of this title apply to
the Section 811 program and to projects funded under Secs. 891.655
through 891.790.
PART 901--PUBLIC HOUSING MANAGEMENT ASSESSMENT PROGRAM
65. The authority citation for part 901 continues to read as
follows:
Authority: 42 U.S.C. 1437d(j); 42 U.S.C. 3535(d).
66. In Sec. 901.5, revise the definition of ``HQS'' to read as
follows:
Sec. 901.5 Definitions.
* * * * *
HQS means Housing Quality Standards as set forth at Sec. 982.401 of
this title, except that Sec. 982.401(j) of this title does not apply
and instead part 35, subparts A, B, L, and R of this title apply.
* * * * *
PART 906--SECTION 5(h) HOMEOWNERSHIP PROGRAM
67. The authority citation for part 906 continues to read as
follows:
Authority: 42 U.S.C. 1437c, 1437d and 3535(d).
68. Revise the first sentence of Sec. 906.6(b) to read as follows:
Sec. 906.6 Property that may be sold.
* * * * *
(b) Physical condition of property. The property must meet local
code requirements (or, if no local code exists, the housing quality
standards established by HUD for the Section 8 Housing Assistance
Payments Program for Existing Housing, under part 882 of this title)
and the relevant requirements of the Lead-Based Paint Poisoning
Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint
Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations part 35, subparts A, B, L, and R of this title. * * *
PART 941--PUBLIC HOUSING DEVELOPMENT
69. The authority citation for part 941 continues to read as
follows:
Authority: 42 U.S.C. 1437b, 1437c, 1437g and 3535(d).
70. Revise Sec. 941.208(b) to read as follows:
Sec. 941.208 Other Federal requirements.
* * * * *
(b) Lead-based paint. The relevant requirements of the Lead-Based
Paint Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential
Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856),
and implementing regulations at part 35, subparts A, B, L, and R of
this title apply to the program.
71. Revise the second sentence of Sec. 941.606(m) to read as
follows:
Sec. 941.606 Proposal.
* * * * *
(m) New construction. * * * This may be accomplished by the PHA's
submission of a comparison of the cost of new construction in the
neighborhood where the housing is proposed to be constructed and the
cost of acquisition of existing housing (with or without
rehabilitation) in the same neighborhood (including estimated costs of
lead-based paint activities). * * *
* * * * *
PART 965--PHA-OWNED OR LEASED PROJECTS--GENERAL PROVISIONS
72. The authority citation for part 965 continues to read as
follows:
Authority: 42 U.S.C. 1437, 1437a, 1437d, 1437g, and 3535(d).
Subpart H is also issued under 42 U.S.C. 4821-4846.
73. Amend Sec. 965.215 as follows:
a. Revise paragraph (a);
b. Revise the introductory text of paragraph (b); and
c. Revise paragraphs (b)(1), (c), and (d).
Sec. 965.215 Lead-based paint liability insurance coverage.
(a) General. The purpose of this section is to specify what HUD
deems reasonable insurance coverage with respect to the hazards
associated with lead-based paint activities that the PHA undertakes, in
accordance with the PHA's ACC with HUD. The insurance coverage does not
relieve the PHA of its responsibility for assuring that lead-based
paint activities are conducted in a responsible manner.
(b) Insurance coverage requirements. When the PHA undertakes lead-
based paint activities, it must assure that it has reasonable insurance
coverage for itself for potential personal injury liability associated
with those activities. If the work is being done by PHA employees, the
PHA must obtain a liability insurance policy directly to protect the
PHA. If the work is being done by a contractor, the PHA must obtain,
from the insurer of the contractor performing this type of work in
accordance with a contract, a certificate of insurance providing
evidence of such insurance and naming the PHA as an additional insured;
or obtain such insurance directly. Insurance must remain in effect
during the entire period of lead-based paint activity and must comply
with the following requirements:
(1) Named insured. If purchased by the PHA, the policy shall name
the PHA as insured. If purchased by an independent contractor, the
policy shall name the contractor as insured and the PHA as an
additional insured, in connection with performing work under the PHA's
contract pertaining to lead-based paint activities. If the PHA has
executed a contract with a Resident Management Corporation (RMC) to
manage a building/project on behalf of the PHA, the RMC shall be an
additional insured under the policy in connection with the PHA's
contract related to lead-based paint activities. (The duties of the RMC
are similar to those of a real estate management firm.)
* * * * *
(c) Exception to requirements. Insurance already purchased by the
PHA or contractor and enforced on the day this section is effective
which provides coverage for lead-based paint activities shall be
considered as meeting the requirements of this section until the
expiration of the policy. This section is not applicable to architects,
engineers or consultants who do not physically perform lead-based paint
activities.
(d) Insurance for the existence of lead-based paint hazards. A PHA
may also purchase special liability insurance against the existence of
lead-based paint hazards, although it is not a required coverage. A PHA
may purchase this coverage if, in the opinion of the PHA, the policy
meets the PHA's requirements, the premium is reasonable and the policy
is obtained in accordance with applicable procurement standards. (See
part 85 of this title and Sec. 965.205 of this title.) If this coverage
is purchased, the premium must be paid from funds available under the
Performance Funding System or from reserves.
[[Page 50229]]
74. Revise subpart H, consisting of Sec. 965.701, to read as
follows:
Subpart H--Lead-based Paint Poisoning Prevention
Sec. 965.701 Lead-based paint poisoning prevention.
The requirements of the Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, L, and R of this title apply to
this program.
PART 968--PUBLIC HOUSING MODERNIZATION
75. The authority citation for part 968 continues to read as
follows:
Authority: 42 U.S.C. 1437d, 1437l, and 3535(d).
76. Revise the first sentence of Sec. 968.102(c) to read as
follows:
Sec. 968.102 Special requirements for Turnkey III developments.
* * * * *
(c) Other. The homebuyer family must be in compliance with its
financial obligations under its homebuyer agreement in order to be
eligible for non-emergency physical improvements, with the exception of
work necessary to meet statutory and regulatory requirements, (e.g.,
accessibility for persons with disabilities and lead-based paint
activities) and the correction of development deficiencies. * * *
77. Revise Sec. 968.110(k) to read as follows:
Sec. 968.110 Other program requirements.
* * * * *
(k) Lead-based paint poisoning prevention. The PHA shall comply
with the relevant requirements of the Lead-Based Paint Poisoning
Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint
Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, L, and R of this title.
* * * * *
78. Revise Sec. 968.112(i) to read as follows:
Sec. 968.112 Eligible costs.
* * * * *
(i) Lead-based paint costs. Eligible costs include lead-based paint
activities, such as insurance coverage and cleanup and disposal, in
accordance with part 35 of this title.
* * * * *
79. In Sec. 968.205, revise the definition of the term ``Other
modernization'' to read as follows:
Sec. 968.205 Definitions.
* * * * *
Other Modernization (modernization other than emergency). A type of
modernization program for a development that includes one or more
physical work items, where HUD determines that the physical
improvements are necessary and sufficient to extend substantially the
useful life of the development, and/or one or more development specific
or PHA-wide management work items (including planning costs), and/or
lead-based paint activities.
* * * * *
80. Revise Sec. 968.210(e)(2)(ii) to read as follows:
Sec. 968.210 Procedures for obtaining approval of a modernization
program.
* * * * *
(e) * * *
(2) * * *
(ii) Lead-based paint inspection compliance. Where a PHA has not
complied with the statutory requirement to complete lead-based paint
inspection of all pre-1978 family units, the PHA is eligible for
processing only for Emergency Modernization or work needed to complete
the lead-based paint inspection.
* * * * *
81. Revise the first sentence of Sec. 968.315(e)(2)(i) to read as
follows:
Sec. 968.315 Comprehensive Plan (including five-year action plan).
* * * * *
(e) * * *
(2) * * *
(i) Requirements. The physical needs assessment identifies all of
the work that a PHA would need to undertake to bring each of its
developments up to the modernization and energy conservation standards,
as required by the Act, to comply with the lead-based paint
requirements in part 35, subparts A, B, L, and R of this title, and to
comply with other program requirements under Sec. 968.110. * * *
* * * * *
82. Revise Sec. 968.435(b) to read as follows:
Sec. 968.435 Other program requirements.
* * * * *
(b) Certify that activities undertaken within vacant units will
bring the affected units into compliance with the Housing Quality
Standards, as set forth in Sec. 982.401 of this title, except that
Sec. 982.401(j) of this title shall not apply; the applicable lead-
based paint requirements in part 35 subparts A, B, L and R, of this
title shall apply.
* * * * *
PART 970--PUBLIC HOUSING PROGRAM--DEMOLITION OR DISPOSITION OF
PUBLIC HOUSING PROJECTS
83. The authority citation for part 970 continues to read as
follows:
Authority: 42 U.S.C. 1437p and 3535(d).
84. Revise Sec. 970.13(d)(1)(i) to read as follows:
Sec. 970.13 Resident organization opportunity to purchase.
* * * * *
(d) * * *
(1) * * *
(i) An identification of the development, or portion of the
development, in the proposed demolition or disposition, including the
development number and location, the number of units and bedroom
configuration, the amount of space and use for non-dwelling space, the
current physical condition (e.g., fire damaged, friable asbestos, lead-
based paint evaluation results), and occupancy status (e.g., percent
occupancy).
* * * * *
PART 982--SECTION 8 TENANT-BASED ASSISTANCE: HOUSING CHOICE VOUCHER
PROGRAM
85. The authority citation for part 982 continues to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
86. Revise Sec. 982.158(f)(5) to read as follows:
Sec. 982.158 Program accounts and records.
* * * * *
(f) * * *
(5) Lead-based paint records as required by part 35, subpart B of
this title.
* * * * *
Sec. 982.301 [Amended]
87. In Sec. 982.301, remove paragraph (b)(10) and redesignate
paragraphs (b)(11) through (b)(16) as paragraphs (b)(10) through
(b)(15), respectively.
88. Revise Sec. 982.305(b)(3) to read as follows:
Sec. 982.305 PHA approval of assisted tenancy.
* * * * *
(b) * * *
(3) The lease is approvable and includes the lease addendum and the
lead-based paint disclosure information as required in Sec. 35.92(b) of
this title.
* * * * *
89. Revise Sec. 982.401(j) to read as follows:
[[Page 50230]]
Sec. 982.401 Housing quality standards (HQS).
* * * * *
(j) Lead-based paint performance requirement. The Lead-Based Paint
Poisoning Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-
Based Paint Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and
implementing regulations at part 35, subparts A, B, M, and R of this
title apply to units assisted under this part.
* * * * *
PART 983--SECTION 8 PROJECT-BASED CERTIFICATE PROGRAM
90. The authority citation for part 983 continues to read as
follows:
Authority: 42 U.S.C. 1437f and 3535(d).
91. Revise Sec. 983.1(b)(2)(vii) to read as follows:
Sec. 983.1 Purpose and applicability.
* * * * *
(b) * * *
(2) * * *
(vii) In subpart I of this part, Sec. 982.401(j),
Sec. 982.402(a)(3), Sec. 982.402(c) and (d) (effect of family unit
size--subsidy and size of unit); and Sec. 982.403 (termination of HAP
contract when unit is too big or too small);
* * * * *
92. Revise Sec. 983.5(c) to read as follows:
Sec. 983.5 Physical condition standards; physical inspection
requirements.
* * * * *
(c) The Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821-
4846), the Residential Lead-Based Paint Hazard Reduction Act of 1992
(42 U.S.C. 4851-4856), and implementing regulations at part 35,
subparts A, B, H, and R of this title apply to units assisted under
this part.
93. Revise Sec. 983.104(b)(2)(iv) to read as follows:
Sec. 983.104 New construction or rehabilitation completion.
* * * * *
(b) * * *
(2) * * *
(iv) Units are in compliance with the lead-based paint requirements
in part 35, subparts A, B, H, and R of this title; and
* * * * *
94. In Sec. 983.203(d), revise the first sentence of the
introductory paragraph to read as follows:
Sec. 983.203 Family participation.
* * * * *
(d) Briefing of families. When a family is selected to occupy a
project-based unit, the PHA must provide the family with information
concerning the tenant rent and any applicable utility allowance and a
copy of the lead hazard information pamphlet, as required by part 35,
subpart A of this title. * * *
* * * * *
PART 1000--NATIVE AMERICAN HOUSING ACTIVITIES
95. The authority citation for part 1000 continues to read as
follows:
Authority: 12 U.S.C. 1715z-13a and 3535(d).
96. Revise Sec. 1000.40 to read as follows:
Sec. 1000.40 Do lead-based paint poisoning prevention requirements
apply to affordable housing activities under NAHASDA?
Yes, lead-based paint requirements apply to housing activities
assisted under NAHASDA. The applicable requirements for NAHASDA are
HUD's regulations at part 35, subparts A, B, E, G, H, K, M and R of
this title, which implement the Lead-Based Paint Poisoning Prevention
Act (42 U.S.C. 4822-4846) and the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856).
PART 1003--COMMUNITY DEVELOPMENT BLOCK GRANTS FOR INDIAN TRIBES AND
ALASKAN NATIVE VILLAGES
97. The authority citation for part 1003 continues to read as
follows:
Authority: 42 U.S.C. 3535(d) and 5301 et seq.
98. Revise Sec. 1003.202(b)(7)(iv) to read as follows:
Sec. 1003.202 Eligible rehabilitation and preservation activities.
* * * * *
(b) * * *
(7) * * *
(iv) Lead-based paint activities in part 35 of this title.
* * * * *
99. Revise Sec. 1003.607 to read as follows:
Sec. 1003.607 Lead-based paint.
The requirements of the Lead-Based Paint Poisoning Prevention Act
(42 U.S.C. 4821-4846), the Residential Lead-Based Paint Hazard
Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations part 35, subparts A, B, J, K, and R of this title apply to
activities conducted under this program.
PART 1005--LOAN GUARANTEES FOR INDIAN HOUSING
100. The authority citation for part 1005 continues to read as
follows:
Authority: 12 U.S.C. 1715z-13a and 3535(d).
101. In Sec. 1005.111, redesignate the existing text as paragraph
(a) and add paragraph (b) to read as follows:
Sec. 1005.111 What safety and quality standards apply?
* * * * *
(b) The relevant requirements of the Lead-Based Paint Poisoning
Prevention Act (42 U.S.C. 4821-4846), the Residential Lead-Based Paint
Hazard Reduction Act of 1992 (42 U.S.C. 4851-4856), and implementing
regulations at part 35, subparts A, B, H, J, K, M, and R of this title
apply to this part.
Dated: August 26, 1999.
Andrew Cuomo,
Secretary.
Appendix A--Sample Summary Inspection Notice Format
Note: The following appendix will not appear in the Code of
Federal Regulations
Summary Notice of Lead-Based Paint Inspection
Address/location of property or structure(s) this summary notice
applies to:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Lead-based paint inspection description:
Date(s) of inspection:-----------------------------------------------
Summary of inspection results (check all that apply):
(a) ____ No lead-based paint was found.
(b) ____ Lead-based paint was found.
(c) ____ A brief summary of the findings of the inspection is
provided below (required if lead-based paint found).
Summary of where lead-based paint was found. List at least the
housing unit numbers and common areas (for multifamily housing), and
building components (including type of room or space, and the
material underneath the paint):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Contact person for more information about the inspection:
Printed name:--------------------------------------------------------
Organization:--------------------------------------------------------
Street and city:-----------------------------------------------------
[[Page 50231]]
State:____ ZIP:------------------------------------------------------
Phone number: (____)-------------------------------------------------
Person who prepared this summary notice:
Printed name:--------------------------------------------------------
Signature:-----------------------------------------------------------
Date:----------------------------------------------------------------
Organization:--------------------------------------------------------
Street and city:-----------------------------------------------------
State:____ ZIP:____--------------------------------------------------
Phone number: (____)-------------------------------------------------
Appendix B--Sample Summary Risk Assessment Notice Format
Note: This following appendix will not appear in the Code of
Federal Regulations
Summary Notice of Lead-Based Paint Risk Assessment
Address/location of property or structure(s) this summary notice
applies to:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Lead-based paint risk assessment description:
Date(s) of risk assessment:------------------------------------------
Summary of risk assessment results (check all that apply):
(a) ____ No lead-based paint hazards were found.
(b) ____ Lead-based paint hazards were found.
(c) ____ A brief summary of the findings of the risk assessment
is provided below (required if any lead-based paint hazards were
found).
Summary of types and locations of lead-based paint hazards. List at
least the housing unit numbers and common areas (for multifamily
housing), bare soil locations, dust-lead locations, and/or building
components (including type of room or space, and the material
underneath the paint), and types of lead-based paint hazards found:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Contact person for more information about the risk assessment:
Printed name:--------------------------------------------------------
----------------------------------------------------------------------
Organization:--------------------------------------------------------
----------------------------------------------------------------------
Street and city:-----------------------------------------------------
----------------------------------------------------------------------
State: ____ ZIP: ____ Phone number: (____)---------------------------
----------------------------------------------------------------------
Person who prepared this summary notice:
Printed name:--------------------------------------------------------
----------------------------------------------------------------------
Signature:-----------------------------------------------------------
Date:----------------------------------------------------------------
----------------------------------------------------------------------
Organization:--------------------------------------------------------
----------------------------------------------------------------------
Street and city:-----------------------------------------------------
----------------------------------------------------------------------
State: ____ ZIP: ____ Phone number: (____)---------------------------
----------------------------------------------------------------------
Appendix C--Sample Summary Presumption Notice Format
Note: The following appendix will not appear in the Code of
Federal Regulations
Notice That Lead-Based Paint or Lead-Based Paint Hazards Are Presumed
to be Present
Address/location of property or structure(s) this notice of
presumption applies to:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Type of presumption (check all that apply):
(a) ____ Lead-based paint is presumed to be present.
(b) ____ Lead-based paint hazard(s) is(are) presumed to be
present.
Summary of presumption. List at least the housing unit numbers and
common areas (for multifamily housing), bare soil locations, dust-
lead locations, and/or building components (including type of room
or space, and the material underneath the paint), and types of lead-
based paint hazards presumed to be present:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Contact person for more information about the presumption:
Printed name:--------------------------------------------------------
----------------------------------------------------------------------
Organization:--------------------------------------------------------
----------------------------------------------------------------------
Street and city:-----------------------------------------------------
----------------------------------------------------------------------
State: ____ ZIP: ____ Phone number: (____)---------------------------
----------------------------------------------------------------------
Person who prepared this notice of presumption:
Printed name:--------------------------------------------------------
----------------------------------------------------------------------
Signature:-----------------------------------------------------------
Date:----------------------------------------------------------------
----------------------------------------------------------------------
Organization:--------------------------------------------------------
----------------------------------------------------------------------
Street and city:-----------------------------------------------------
----------------------------------------------------------------------
State: ____ ZIP: ____ Phone number: (____)---------------------------
----------------------------------------------------------------------
Appendix D--Sample Hazard Reduction Completion Notice Format
Note: The following appendix will not appear in the Code of
Federal Regulations.
Summary Notice of Completion of Lead-Based Paint Hazard Reduction
Activity
Address/location of property or structure(s) this summary notice
applies to:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Summary of the hazard reduction activity:
Start and completion date(s):----------------------------------------
Activity locations and types. List at least the housing unit numbers
and common areas (for multifamily housing), bare soil locations,
dust-lead locations, and/or building components (including type of
room or space, and the material underneath the paint), and types of
hazard reduction activities performed at the locations listed:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Date(s) of clearance testing and/or soil analyses: ____
Locations of building components with lead-based paint remaining in
the rooms, spaces or areas where activities were conducted:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Summary of results of clearance testing and soil analyses:
(a) ____ No clearance testing was performed.
(b) ____ Clearance testing showed clearance was achieved.
(c) ____ Clearance testing showed clearance was not achieved.
Contact person for more information about the hazard reduction:
Printed name:--------------------------------------------------------
Organization:--------------------------------------------------------
Street and city:-----------------------------------------------------
State: ____ ZIP:-----------------------------------------------------
Phone number: (____)-------------------------------------------------
Person who prepared this summary notice:
Printed name:--------------------------------------------------------
Signature:-----------------------------------------------------------
Date:----------------------------------------------------------------
Organization:--------------------------------------------------------
Street and city:-----------------------------------------------------
State: ____ ZIP:-----------------------------------------------------
Phone number: (____)-------------------------------------------------
[FR Doc. 99-23016 Filed 9-14-99; 8:45 am]
BILLING CODE 4210-32-P
