[Federal Register Volume 61, Number 111 (Friday, June 7, 1996)]
[Proposed Rules]
[Pages 29170-29232]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14101]
[[Page 29169]]
_______________________________________________________________________
Part II
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 35, 36 and 37
Requirements Notification, Evaluation, and Reduction of Lead-Based
Paint Hazards in Federally Owned Residential Property and Housing
Receiving Federal Assistance; Proposed Rule
Federal Register / Vol. 61, No. 111 / Friday, June 7, 1996 / Proposed
Rules
[[Page 29170]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Secretary
24 CFR Parts 35, 36 and 37
[Docket No. FR-3482-P-01]
RIN 2501-AB57
Office of Lead-Based Paint Abatement and Poisoning Prevention;
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-Based Paint Abatement
and Poisoning Prevention, HUD.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This proposed rule implements sections 1012 and 1013 of the
Residential Lead-Based Paint Hazard Reduction Act of 1992, Title X of
the Housing and Community Development Act of 1992. These sections set
forth significant new requirements concerning lead-based paint hazard
notification, evaluation, and reduction for federally owned residential
property and housing receiving Federal assistance. This proposed rule
constitutes a major revision of the Department's lead-based paint
regulations. For the first time, HUD's lead-based paint requirements
for all Federal programs will be consolidated in the Code of Federal
Regulations. One part or subpart will set out programmatic requirements
concerning lead-based paint hazard notification, evaluation and
reduction for all covered HUD programs, as well as programs of other
Federal agencies. One part or subpart will distill information
concerning how to perform lead-based paint hazard evaluation and
reduction activities, such as risk assessment and interim controls,
based on the HUD Guidelines for the Evaluation and Control of Lead-
Based Paint Hazards in Housing. Another part or subpart will set out
requirements concerning lead-based paint notification for all pre-1978
residential property sold or leased, including non-federally related
privately owned residential property. (This last part or subpart was
published jointly by HUD and the Environmental Protection Agency as a
proposed rule, on November 2, 1994; a final rule is expected soon.)
DATES: Comments on this proposed rule must be received on or before
September 5, 1996.
The deadline for comments on the information collection
requirements is August 6, 1996, although commenters are advised that a
comment is best assured of having its full effect if it is received by
the Office of Management and Budget (OMB) within 30 days of
publication.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule 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. Communications should refer
to the above docket number and title. Facsimile (FAX) comments are not
acceptable. A copy of each communication submitted will be available
for public inspection and copying between 7:30 a.m. and 5:30 p.m.
weekdays at the above address.
Comments on the proposed information collection requirements must
refer to FR-3482, Requirements for Notification, Evaluation and
Reduction of Lead-Based Paint Hazards in Federally Owned Residential
Property and Housing Receiving Federal Assistance, and must be sent to:
Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and
Budget, New Executive Office Building, Washington, DC 20503
and
Reports Liaison Officer, Office of Lead-Based Paint Abatement and
Poisoning Prevention, Department of Housing & Urban Development, 451
7th Street SW., Room 4244, Washington, DC 20410.
FOR FURTHER INFORMATION CONTACT: For further information on part 36 in
the proposed rule, contact Joan Catherine Tetrault, and for further
information on part 37 of the proposed rule contact Conrad Arnolts. The
address for both of these persons is: Office of Lead-Based Paint
Abatement and Poisoning Prevention, Department of Housing and Urban
Development, 451 7th Street, SW, Room B-133, Washington, DC 20410-0500,
Telephone: (202) 755-1805, E-mail: Joan__C.__Tetrault@hud.gov, or
Conrad__C.__Arnolts@hud.gov. For legal questions, contact Kenneth A.
Markison or John B. Shumway, Office of General Counsel, Room 9262,
Department of Housing and Urban Development, Telephone: (202) 708-9988,
E-mail: John__B.__Shumway@hud.gov. For hearing- and speech-impaired
persons, these numbers may be accessed via TTY (text telephone) by
calling the Federal Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act Statement
The information collection requirements contained in sections
36.63, 36.64, 36.70, 36.84, 36.144, 36.162, 36.164, 36.168, 36.170,
36.188, 36.208, 36.230, 36.232, 36.256, 36.274, 36.276, 36.284, 36.294,
and 36.302 of this proposed rule have been submitted to the Office of
Management and Budget (OMB) for review under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3520). 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.
Information on the estimated public reporting burden and where to
send comments is provided under the preamble heading, Other Matters.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment on the proposed rule.
II. Background
A. Lead Poisoning
Childhood lead poisoning is ``the most common environmental disease
of young children,'' (``Strategic Plan for the Elimination of Lead
Poisoning'', Centers for Disease Control (``CDC''), U.S. Department of
Health and Human Services, Atlanta, Georgia, 1991) eclipsing all other
environmental health hazards found in the residential environment
(``The Nature and Extent of Lead Poisoning in Children in the United
States: A Report to Congress'', Agency for Toxic Substances and Disease
Registry, U.S. Department of Health and Human Services, Atlanta,
Georgia, 1988) (hereafter ``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 six. 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 (Davis, J.M., R. Elias and L. Grant ``Current
Issues in Human Lead Exposure and Regulation
[[Page 29171]]
of Lead'', Neurotoxicologist, 14(2-3):1528, 1993). These effects have
been identified in many carefully controlled research studies
(``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). However, the vast
majority of childhood lead-poisoning cases go undiagnosed and
untreated, since most poisoned children have no obvious symptoms.
Although significant declines have been observed in the overall
mean blood lead levels of children, which can be attributed to Federal
Government actions resulting in the removal of lead from gasoline and
soldered cans, approximately 1.7 million children are estimated to have
blood lead levels high enough to be of a health concern. Lead poisoning
affects children across all socioeconomic strata and in all regions of
the country. However, because lead-based paint hazards are most severe
in older housing in disrepair, the poor in inner cities are
disproportionately affected. In some inner city communities, over half
of all young children have lead levels exceeding the CDC threshold of
concern (10 micrograms per deciliter). Nationwide, African-American
children of low and middle income families are twice as likely to be
lead poisoned as white children of similar income families (Phase I of
the Third National Health and Nutrition Examination Survey, NHANES III,
1988-1992, as reported in the Journal of American Medical Association,
July 27, 1994).
Today, children in the United States are lead poisoned primarily
through ingestion by normal hand-to-mouth activity and, to a lesser
extent, inhalation. Because lead is ubiquitous in industrial societies,
there are many sources and pathways of lead exposure. The foremost
source of childhood lead exposure in the United States today is lead-
based paint and the accompanying lead-contaminated dust and soil found
in and around older houses (``Preventing Lead Poisoning in Young
Children'', CDC, U.S. Department of Health and Human Services, Atlanta,
Georgia, 1991; Rabinowitz, M., J. Leviton, H. Needleman, D. Bellinger
and C. Waternaux, ``Environmental Correlates of Infant Blood Lead
Levels in Boston'', Environmental Research 38:96-107, 1985). As early
as 1897, lead-based paint was identified as a cause of childhood lead
poisoning (Turner, 1897). Many countries prohibited the use of lead in
residential paints as far back as 1922 (Rabin, R., ``Warnings Unheeded:
A History of Lead Poisoning'', American Journal of Public Health
79:1668-1674, 1989). Lead was a major ingredient in most interior and
exterior house oil-based paints prior to 1950, with some paints
containing as much as 50 percent lead by dry weight. In the early
1950s, other ingredients became more popular, but some lead pigments,
corrosion inhibitors, and drying agents were still used.
In the 1950's and 1960's, several large cities in the United States
banned the use of lead-based paint (using varying definitions) on
interior surfaces in residential structures. In 1955, the paint
industry adopted a voluntary standard limiting the use of lead in
interior paints to no more than 1 percent by weight of nonvolatile
solids. In 1972, HUD prohibited the use of lead-based paint (at the 1
percent standard) in HUD-associated housing. In 1972, the Consumer
Product Safety Commission (``CPSC'') reduced the acceptable lead
content in residential paint to 0.5 percent, and in 1978 subsequently
banned the sale of residential paint containing greater than 0.06
percent lead. CPSC also prohibited the use of such paint in residences
and other areas where consumers have direct contact with painted
surfaces.
HUD estimates that three-quarters of pre-1980 dwelling units
contain some lead-based paint. The likelihood, extent, and
concentration of lead-based paint all increase with the age of the
building. Fully 90 percent of privately owned dwelling units
constructed before 1940 contain some lead-based paint, 80 percent of
dwelling units constructed between 1940 and 1959, and 62 percent of
dwelling units constructed between 1960 and 1979 (``Comprehensive and
Workable Plan for the Abatement of Lead-Based Paint in Privately-Owned
Housing: A Report to Congress'', U.S. Department of Housing and Urban
Development, Washington, D.C., December 7, 1990). Because the greatest
risk is in residential property constructed before 1960, older property
generally commands a higher priority for lead hazard controls. However,
there is evidence that significant amounts of lead-based paint were
sold as late as 1971, when New York City's Health Department tested 78
``new'' residential paints and found eight of them to have lead ranging
from 2.6 percent to 10.8 percent (Bird, D., ``High Lead Paints Listed
by City'', NY Times, August 4, 1971:18).
For many years, the conventional belief was that in order to be
poisoned children must eat lead paint chips. More recent medical
research has determined that the most common cause of childhood lead
exposure is the ingestion, through hand-to-mouth transmission, of lead-
contaminated surface dust (Clark, C.S., R. Bornschein, P. Succop, S.
Roda and B. Peace, ``Urban Lead Exposures of Children in Cincinnati,
Ohio'', Journal of Chemical Speciation and Bioavailability, 3(\3/4\):
163-171, 1991; Bellinger, D., J. Sloman, A. Leviton, M. Rabinowitz, H.
Needleman and C. Waternaux, ``Low Level Lead Exposure and Children's
Cognitive Function in the Preschool years'', Pediatrics, (87):219-227,
1991). Lead-contaminated dust may be so fine that it cannot be seen by
the naked eye. In addition, lead-contaminated dust is difficult to
clean up. Leaded dust is generated when lead-based paint is damaged by
moisture, abraded on friction and impact surfaces, or is disturbed in
the course of repainting, renovation, repair, or abatement. Lead can
also be tracked into homes from exterior dust and soil.
Children can also be exposed to lead found in bare soil. High
levels of lead in soil around the foundation of a house may come from
the scraping and repainting of exterior lead-based paint or simply the
deterioration of such paint (Ter Harr, G. and R. Arnow, ``New
Information on Lead in Dirt and Dust as Related to the Childhood Lead
Problem'', Environmental Health Prospectives, May, 1974:83-89; Linton,
R.W., D.F.S. Natush, R.L. Solomon and C.A. Evans, ``Physicochemical
Characterization of Lead in Urban Dusts: A Microanalytical Technique to
Lead Tracing'', Environmental Science Technology, 14:159-164, 1980).
Soil is also contaminated with lead by the fallout of lead emissions
from the combustion of leaded automobile gasoline and from industrial
sources (ATSDR, 1988, supra). In some areas, high leaded soil levels
result from factory and smelter emissions or deteriorating lead-based
paint on steel structures, such as bridges. Bare soil that is
contaminated with lead poses a hazard to children who play in it.
Based on the belief that children had to eat lead-based paint chips
to be poisoned, the typical response to lead poisoning during the 1970s
and early 1980s consisted of removing deteriorated and/or accessible
lead-based paint by scraping, uncontrolled sanding, or open flame
burning, all of which generated large amounts of lead dust. Approaches
differed slightly from city to city. Some cities required removal of
all lead-based paint to a certain height, such as 5 feet; others
required only that deteriorating paint be removed. However, these
traditional
[[Page 29172]]
abatements had one common characteristic: little attention was paid to
controlling, containing and cleaning up leaded dust. In many cases,
these paint removal methods actually aggravated the problem, increasing
lead exposures and poisoning workers and children in the process.
Several studies found that uncontrolled abatement and inadequate
cleanup caused increased blood lead levels (Farfel, M. and J.J.
Chisolm, Jr, ``Health and Environmental Outcomes of Traditional and
Modified Practices for Abatement of Residential Lead-Based Paint'',
American Journal of Public Health, 80:10,1240-1245, 1990;; Rabinowitz,
M., A. Leviton and D. Bellinger, ``Home Refinishing, Lead Paint and
Infant Blood Lead Levels'', American Journal of Public Health,
75(4):403-404, 1985; Amitai, Y., J.W. Graef, M.J. Brown, R.S. Gerstle,
N. Kahn and P.E. Cochrane, ``Hazards of Deleading Homes of Children
with Poisoning'', American Journal of Diseases of Children, 141:758-
760, 1987). The Department's Lead-Based Paint: Guidelines for Hazard
Identification and Abatement in Public and Indian Housing, (1990)
(``Interim Guidelines'') properly emphasized the danger of lead-
contaminated dust and the need for worker protection and thorough
cleanup.
Title X 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 per square
centimeter (mg/cm2) of lead, 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
accessible surfaces, friction surfaces, or impact surfaces that would
result in adverse human health effects.'' Thus, under this definition,
intact lead-based paint on most walls and ceilings is not considered a
``hazard,'' although the condition of the paint should be monitored and
maintained to ensure that it does not become deteriorated. While most
efforts to address lead hazards in residential property will now be
aimed at reducing lead-based paint hazards as defined by Title X,
Federal law makes one notable exception: in public and Indian housing
all lead-based paint and lead-based paint hazards must be abated during
modernization.
Title X defines two methods of identifying or ``evaluating'' lead-
based paint hazards or lead-based paint. One method, ``risk
assessment'', includes wipe sampling and other environmental sampling
to identify lead-based paint hazards. The other, ``inspection'' (or
``paint inspection''), determines the presence only of lead-based
paint. Lead-based paint hazard 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 control:
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 lead-based paint hazard evaluation and
reduction is carried out safely and effectively, Title X imposes 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, were written pursuant to the passage of the Lead-Based Paint
Act, as amended prior to 1992. This legislation required the Secretary
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.'' HUD interpreted the phrase
``housing assistance payments'' broadly and therefore in 1976 the
Department 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 was promulgated setting forth general
procedures for the inspection and treatment of defective paint surfaces
in all HUD-associated housing. Subsection 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.
On May 12, 1994, at 59 FR 24850, the Department published a
proposed rule for comment that was intended to be the first phase of a
process to revise HUD's lead-based paint regulations. In this first
phase, HUD intended to remedy inaccuracies in existing regulations and
respond to advancements in the state of knowledge in the field of lead-
based paint testing and hazard reduction. The proposed rule did not
reflect changes in the Title X amendment to the Lead-Based Paint Act.
However, many of the public comments the Department received on this
proposed rule reflected a misimpression that the proposed rule was
intended to implement Title X. Other comments were impatient with HUD
and felt strongly that the Department should devote its resources to
implementing the new legislation, rather then making minor adjustments
to the existing regulations. The Department agreed and consequently the
May 12, 1994 proposed rule was withdrawn. The proposed changes to the
regulations, where consistent with Title X, have been incorporated into
this rulemaking.
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 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, in many cases, interim control and monitoring of
lead-based paint hazards, although abatement of lead-based paint
hazards is not precluded. This proposed 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
[[Page 29173]]
exposure to occupants and to the environment.
III. HUD Reinvention
In 1993 the Department launched a major restructuring, or
reinvention, to meet the changing housing and development needs of
communities across the country. HUD's reinvention efforts took place in
the context of a broader, government-wide reinvention process, the
National Performance Review, initiated by President Clinton and Vice-
President Gore. The Department's proposed reinvention process will
consolidate HUD programs by replacing numerous individual programs,
each imposing its own prescriptive rules and requirements, with far
fewer streamlined funds, which would stress performance-based
objectives. These new funds will give State and local decision makers
maximum flexibility to tailor Federal resources in response to local
circumstances, needs and priorities. The Department also proposes to
phase out direct public housing subsidies to housing agencies,
converting the funds to tenant-based rental assistance that will allow
residents an expanded choice of housing. Finally, the Department's
reinvention will transform the Federal Housing Administration (FHA)
into a business-like, government-owned corporation, enabling it to work
more effectively and improve its efficiency.
In order to keep pace with the changes HUD is undertaking, the
Department's program regulations must also change. Although the
proposed 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 lead-based paint technology and in HUD service
delivery.
The proposed rule consolidates numerous lead-based paint
regulations found throughout HUD's program regulations into two parts
(parts 36 and 37) of title 24 of the Code of Federal Regulations. At
the final rule stage, the Department will consider combining all of its
lead-based paint regulations into one part of the Code of Federal
Regulations.
The Department is seeking to eliminate redundant lead-based paint
regulations and to achieve a measure of consistency among the lead-
based paint requirements for different HUD programs, recognizing that
HUD clients often receive funding from several HUD programs and must
juggle separate and sometimes inconsistent sets of program regulations.
Furthermore, the Department is engaged in a larger effort to streamline
and eliminate unnecessary regulations, as part of the reinvention of
HUD, and the extent to which this larger effort may impact our
objective to eliminate unnecessary lead-based paint regulations is not
yet clear. As a result, the Department has not included as part of this
proposed rule the specific deletions of lengthy lead-based paint
program regulations and new references and cross citations to parts 36
and 37. These deletions, as well as new references and cross citations
also will be added during final rulemaking.
The proposed rule groups HUD programs by the type of assistance
provided. This was done to ease the burden on HUD clients in locating
the lead-based paint requirements that correspond to the type of
assistance they receive. For instance, a client receiving HUD funds for
rehabilitation will find only one rehabilitation subpart, rather than a
rehabilitation subpart for multifamily property and a separate subpart
on rehabilitation using HOME or CDBG funds. In addition, grouping HUD
programs by type of assistance allows the Department greater
flexibility as it consolidates many individual programs into the three
performance-based funds. For example, the proposed rule has a subpart
for public housing as it now exists and a subpart for tenant-based
rental assistance. If a conversion of public housing subsidies to
tenant-based rental assistance occurs, the appropriate lead-based paint
requirements will already be in place.
Finally, the proposed 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 from lead-based paint poisoning. Where possible, the
proposed rule provides opportunities for HUD clients to implement
hazard reduction measures that will best meet the needs of their
communities. For example, in subpart B of part 36, States, Indian
tribes and insular areas that meet certain eligibility criteria have
the opportunity to develop their own lead-based paint procedures and
localities located in such a State have the option of adopting these
State procedures (See Section VII A.3 of the Preamble below).
IV. Public Input on Rulemaking
Consistent with Executive Order 12866, HUD has increased public
participation in the regulatory development process. Because of the
magnitude of the changes required in HUD's lead-based paint proposed
rule 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, and
three major meetings of HUD clients to seek input on the implementation
of Title X.
A. 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 hazard evaluation and reduction methods
described in Part 37 of the proposed rule, and are intended to help
property owners, government agencies and private contractors sharply
reduce children's exposure to lead-based paint, without adding
unnecessarily to the cost of housing.
B. Title X Task Force
The creation of the Title X Task Force on Lead-Based Paint Hazard
Reduction and Financing was also mandated by Section 1015 of Title X.
The Task Force submitted its recommendations, Putting the Pieces
Together: Controlling Lead Hazards in the Nation's Housing, to 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 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
hazard evaluation and control, financing hazard control activities, and
liability and insurance for rental property
[[Page 29174]]
owners and hazard control contractors. The Department used the Task
Force recommendations to guide the development of the lead-based paint
requirements for Section 8 tenant-based rental assistance programs set
forth in Part 36, subpart O, of the proposed rule.
C. Meetings with HUD Clients
Finally, 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 hazard
evaluation and reduction activities, and children with elevated blood-
lead levels. Additional written comments were accepted from
participants after the meetings. Participants' written comments, as
well as meeting transcripts, are available for public review between
7:30 a.m. and 5:30 p.m. weekdays, in the Office of the Rules Docket
Clerk, Office of General Council, U.S. Department of Housing and Urban
Development, 451 7th Street SW., Washington, DC 20410-0500.
V. Scope and Applicability.
A. Sections 1012 and 1013 of Title X
This proposed rule implements the requirements of the Lead-Based
Paint Act, as amended by Section 1012 and Section 1013 of Title X.
Section 1012(a) of Title X amends the first sentence of the Lead-Based
Paint 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.
Section 1012 sets out minimum procedures for all ``target housing''
that falls within the three categories discussed above--mortgage
insurance, housing assistance payments or more than $5,000 in project-
based assistance. Target housing 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) or any 0-bedroom dwelling unit. HUD
has interpreted the exceptions for elderly and disabled housing (See
Sec. 36.2) to apply only to residential property which is designated
exclusively for elderly or disabled use. After considerable discussion,
HUD has determined that it would be unworkable and contrary to the
intent of the statute to expand these exceptions to each particular
dwelling unit occupied by an elderly or disabled person, regardless of
its designation.
In the past, the Department has taken the position that the
requirements of the Lead-Based Paint Act applied only to new
applications for mortgage insurance or other types of housing
assistance, under any program administered by the Secretary. The
Department interprets the new phrase added by Section 1012(a), ``more
than $5,000 in project-based assistance under a Federal housing
program'', to cover any Federal housing program administered by any
Federal agency which provides project-based assistance. Consequently,
subpart I of Part 36 applies to both new and existing inventory
receiving project-based assistance under a HUD program, and subpart D
applies these requirements to other Federal agencies. Finally, although
Title X only requires the Secretary to establish lead-based paint
procedures for residential property receiving more than $5,000 in
project-based assistance, Subpart I includes additional minimal lead-
based paint procedures (i.e. the procedures for tenant-based rental
assistance) for multifamily property receiving less than $5,000 in
project-based assistance from HUD. The Department also applies these
minimal lead-based paint procedures to single family properties
receiving Section 8 Moderate Rehabilitation or Project-Based
Certificate assistance from HUD. The Department wants to extend some
limited lead-based paint protections to properties receiving minimal
project-based assistance and also wants to relieve single family owners
with limited financial resources from being required to comply with the
extensive lead-based paint requirements for project-based assistance.
These additional minimal procedures were not included in Subpart D for
project-based assistance provided by a Federal agency other than HUD.
Under Title X, Congress is silent with respect to whether the new
minimum procedures for lead-based paint hazard notification, evaluation
and reduction apply to tenant-based rental assistance and HUD's
examination of legislative intent is inconclusive. Congress did not
amend the first sentence of the Lead-Based Paint 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 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. See Senate Committee on Banking, Housing,
and Urban Affairs, Senate Report 102-332, July 23, 1992 (hereafter,
``Senate Report 102-332'').
In HUD's view, Congress clearly did not intend for HUD to apply the
new minimum procedures for lead-based paint hazard notification,
evaluation and reduction set out in Title X to tenant-based rental
assistance. However, HUD does not believe that Congress intended to
abolish HUD's current procedures, which serve to protect, in a minimal
way, the recipients of this type of housing assistance. Rather,
Congress may have intended for the Department to effectively retain its
present lead-based paint requirements for tenant-based rental
assistance. In its current regulations, HUD requires tenant-based
rental property occupied by families with children under six to meet
the minimal standard for lead-based paint found in its Housing Quality
Standards (HQS). In this proposed rule, then, HUD continues to require
tenant-based rental property to meet HQS. The Department, however,
modifies the lead-based paint requirements in HQS somewhat, in
accordance with the general approach of Title X, to require visual
evaluation, dust testing in some situations, paint repair, cleanup, a
response to an elevated blood level (EBL) child and related activities
in accordance with part 37.
Section 1013 amends 42 U.S.C. 4822(a)(3) to modify existing
requirements for the disposition (i.e. sale) of all residential
property constructed before 1978 and owned by a Federal agency.
Consequently, the Department includes here new subpart C of Part 36
which sets out these requirements concerning the disposition of all
federally owned residential
[[Page 29175]]
property. Elsewhere in Part 36, the Department sets out specific
requirements for the disposition of HUD-Owned Single Family and
Multifamily property.
Section 1013 adds 42 U.S.C. 4822(a)(3)(C), which states the
following: In the absence of appropriations sufficient to cover the
costs of 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), these requirements shall not apply to the affected agency or
agencies.
The Department interprets this language to state that HUD (and
other Federal agencies that own residential property covered herein)
need not comply with the requirements set out in Section 1013 if
sufficient funds are not provided to the agency for this purpose. In
the Department's view, it is consistent with the intent of Congress to
nevertheless make some effort to evaluate and treat deteriorated paint
in HUD-owned properties (similar to existing procedures), even if
funding is not made available to the Department to carry out more
extensive lead-based paint hazard evaluation and reduction. Since these
properties are owned by the Department, HUD feels that it has the
authority to adopt an alternative response to potential lead-based
paint hazards in the absence of sufficient appropriations. Therefore,
subparts F and G of part 36, for HUD-Owned Single Family Housing, and
subparts J and K of part 36, for HUD-Owned and Mortgagee-in-Possession
Multifamily Property, set forth alternative requirements when
appropriated money is available and when appropriated money is not
available. When appropriated money is available, the regulatory
requirements track the language of Section 1013. When appropriated
money is not available, alternative regulatory requirements are set
forth. Other agencies may also wish to develop alternative requirements
to those set out in part 36, subpart C, when appropriated monies are
not available.
B. Format
Throughout this proposed rule, lead-based paint hazard
notification, evaluation, and reduction requirements represent the
minimum activities that are required under this proposed rule; of
course, parties may wish to voluntarily undertake more extensive lead-
based paint activities. It should also be noted that throughout part
36, paint repair or interim controls of deteriorated paint surfaces are
required for various programs and cross references to the relevant
subparts of part 37 concerning treatment are included. These subparts
of part 37 each include a section describing a de minimis level of
paint deterioration, consistent with the HUD Guidelines, below which no
action is required. This de minimis level is defined as not more than
10 square feet of deteriorated paint on an exterior wall, not more than
2 square feet on a component with a large surface area other than an
exterior wall 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.
To avoid requiring evaluation efforts that may have already been
undertaken by property owners and to minimize costs, HUD has included
exemptions for required evaluation activities if equivalent or more
stringent evaluation activities have already been conducted and have
indicated the absence of lead-based paint or lead-based paint hazards.
The proposed rule also provides opportunities to forego evaluation
activities if certain lead-based paint hazard reduction measures
consistent with the requirements of parts 36 and 37 have been
conducted. In addition, where paint inspection or risk assessment are
required, the proposed rule provides the option to assume the presence
of lead-based paint or lead-based paint hazards or both and to perform
hazard reduction activities. Finally, the requirements of visual
evaluation, paint repair and cleanup do not apply if a suitable paint
inspection has already been completed indicating the absence of lead-
based paint (i.e. lead-free).
An owner or recipient of Federal assistance hoping to meet a lead-
free exemption may question whether correcting for possible false (or
outdated) positive findings during lead-based paint inspections is
permissible. The owner or recipient always retains the option of having
additional tests performed by certified paint inspectors. Nothing in
either the law or the proposed regulation is intended to revoke or
restrict that right. An additional test can sometimes clarify whether
or not lead-based paint is present. For example, if an owner or
recipient believed that a previous inspection had rendered a false
positive result (all measurement techniques involve some small degree
of sampling and analytical error), the owner or recipient could choose
to have a certified paint inspector retest the area in question. If the
additional testing by a certified paint inspector indicated that the
initial positive results were false (i.e., that there was in fact no
lead-based paint present), then the owner or recipient would qualify
for a lead-based paint free exemption. Similarly, suppose an owner or
recipient first had a test done in 1982 using an X-ray fluorescence
(XRF) device that indicated the presence of lead-based paint. Because
testing procedures were less reliable at that time (standard practice
often failed to consider the effect of the substrate underneath the
paint, or the accuracy of the measurement and instrument calibration
checks were often deficient), the owner or recipient might choose to
conduct a new test using the improved methodology available today. If
this second test indicated that lead-based paint was not present, then
the owner or recipient would qualify for a lead-based paint free
exemption. As a third example, an owner or recipient who had all lead-
based paint removed from a property following an earlier inspection
could choose to have a new inspection or clearance examination
conducted on the abated property. If the new information indicated that
lead-based paint was no longer present, then the owner or recipient
would qualify for a lead-based paint free exemption. In all three
cases, if the second test confirmed the original findings, or if the
test was not conducted by a certified paint inspector, an exemption
would not be available.
As stated above, the proposed rule sets forth new parts 36 and 37
that, together with part 35, subpart H, comprise all of HUD's
regulatory requirements for lead-based paint in a single place. The
numerous lead-based paint requirements set out in various program
regulations will be deleted. Part 36 describes the lead-based paint
requirements for each program covered under the Lead-Based Paint Act,
grouped according to the manner in which program responsibility is
divided in the Department and according to the relevant requirements.
The requirements for single family and multifamily property appear
separately. There are two single family property disposition subparts
and two multifamily property disposition subparts--one if
appropriations are sufficient and one if appropriations are not
sufficient. There are also separate subparts for single family insured
property and multifamily insured property, and for project- and tenant-
based rental assistance programs. There is one rehabilitation subpart
and one subpart for CPD non-rehabilitation programs. The requirements
for public and Indian housing are located in a
[[Page 29176]]
single subpart. There is also a subpart that provides alternative
procedures for States receiving Federal housing assistance, or
operating a Federal housing assistance program. Finally, the
requirements for properties owned by, or receiving project-based
assistance from, a Federal agency other than HUD are set out in two
subparts.
The program requirements set out in part 36 specifically reference
the procedural information for conducting lead-based paint hazard
evaluation and reduction activities included in part 37. Part 37
distills the extensive information found in the HUD Guidelines, in
subparts on paint inspection, risk assessment, interim controls,
abatement, occupant protection, worksite preparation, cleanup,
clearance and monitoring. As stated in the discussion of HUD's
Reinvention efforts, the Department is considering a more performance-
based approach to its lead-based paint hazard evaluation and reduction
requirements, and may consolidate parts 36 and 37 in the final rule.
The Department requests comments on the format of the proposed rule, as
well as the content.
C. Effective Date and Qualifications for Conducting Lead-Based Paint
Hazard Evaluation and Reduction Activities
The proposed effective date of these regulations is one year after
the date of publication of the final rule in the Federal Register. HUD
anticipates that a final lead-based paint rule will be published by
September 1996. In determining an appropriate effective date, the
Department considered two options: the date of publication of the final
rule and 12 months after publication of the final rule.
The argument in favor of an immediate effective date is that Title
X (Sections 1012 and 1013) requires the evaluation and reduction of
lead-based paint hazards in housing receiving Federal assistance and
residential property owned by the Federal government to take effect on
January 1, 1995; any further delay in implementing these requirements
would pose a risk to the health of children. The argument against an
immediate effective date is that program administrators at all levels
of government, as well as property owners and contractors performing
lead-based paint activities, would not have adequate education and
training time to implement the new technical standards, requirements
and procedures required under the proposed regulation. The Department
is concerned that such a scenario would likely result in a delay in
implementing the new lead-based paint requirements, difficulty in
locating trained and certified workers, unreliable hazard evaluation
results, and unsafe and ineffective hazard control activities.
Further, the Department recognizes that HUD clients conducting
ongoing program activities will need time to incorporate, where
feasible, the new lead-based paint requirements into their programs.
HUD requests program-specific comments on the ``event'' to which the
effective date of the rule should be linked with regard to ongoing
program activities. Specifically, should HUD programs use (1) the date
of the funding agreement between the client and HUD; (2) the date of
the expenditure of HUD funds; (3) the date that the contract between
the project owner and the funding agency is signed; or is there another
more appropriate date?
An effective date of 12 months after publication of the final rule
was chosen by the Department as a way to allow all parties--lead-based
paint professionals, housing agencies, State and local government
agencies, and private property owners--time to prepare for proper
implementation of the new lead-based paint requirements. The effective
date will also coincide approximately with the conclusion of the two-
year period associated with EPA's training and certification
requirements, as discussed below. The Department shares the concern of
the public health community that further delays in implementing the
requirements will place more children at risk of lead-based paint
poisoning. However, it seemed impractical for HUD to establish an
immediate effective date for the proposed rule, knowing that the
infrastructure necessary to carry it out would not be fully in place.
The effective date issue is directly related to the qualifications
necessary for persons carrying out lead-based paint hazard evaluation
and reduction activities. The proposed rule requires that virtually all
lead-based paint hazard evaluation and abatement activities required in
part 36 be conducted by individuals and firms that are certified in
accordance with the new EPA requirements for lead-based paint
activities, developed pursuant to Section 1021 of Title X (adding
Sections 402 and 404 of the Toxic Substances Control Act (TSCA). The
EPA training and certification regulations were published as a proposed
rule on September 2, 1994, and are expected as of this writing to be
published as a final rule in 1996. States must have EPA approved
training and certification programs in place within two years of
publication of the final EPA rule. The EPA regulation will greatly
affect the availability of individuals and firms that are trained and
certified to conduct lead-based paint activities in each State. If the
certification programs of the States and EPA have not developed
sufficiently by the time HUD's new lead-based paint rule takes effect,
the Department will need to consider temporary qualifications for
persons conducting lead-based paint hazard evaluation and reduction
activities. The Department requests comments on the certification
requirement as well as the effective date.
It should be noted that in part 36, subpart N, public and Indian
housing agencies (``HAs'') conducting dust and soil testing for public
and Indian housing are not required to be certified in accordance with
the new EPA requirements for lead-based paint activities. The
Department recognizes that this is inconsistent with the general
approach of the proposed rule. However, HAs were required to complete
paint inspections by December 6, 1994 and many HAs have already taken
the initiative to conduct risk assessments in housing projects.
Therefore, in the Department's view, it is illogical to impose new
certification requirements for evaluation activities conducted in
public and Indian housing. Furthermore, the legislative history for
Title X indicates that Congress did not intend for the new procedures
set out under Title X to disrupt already ongoing public and Indian
housing lead-based paint activities. Since the Department has not
applied certification requirements to evaluation activities conducted
by HAs, additional descriptive material concerning soil and dust
testing has been added to subpart B of part 37. Further, HUD did not
extend the certification requirement to dust testing conducted by HAs
for the Section 8 tenant-based rental assistance program. However, a
risk assessment, conducted in response to an identified EBL child, must
be conducted by a certified risk assessor in accordance with 24 CFR
part 37. HUD requests public comment on the issue of whether
certification requirements for evaluation activities should be applied
to HAs.
VI. Definitions
In order to implement Section 1012 and Section 1013 of Title X,
certain terms need to be defined. To avoid redundancy, definitions used
throughout both parts 36 and 37 are included in subpart A of part 36.
Terms that are only used in a particular subpart are defined in that
subpart.
[[Page 29177]]
Where possible, HUD has drawn definitions directly from Section
1004 of Title X. In cases where the statute either failed to define
terms or where the definition was inadequate, the Department has drawn
definitions from the HUD Guidelines, existing HUD or EPA regulations
(as well as EPA proposed regulations promulgated pursuant to Title X),
the National Institute of Building Sciences (``NIBS'') Lead-Based Paint
Operations and Maintenance Work Practices Manual, and from definitions
compiled and set forth by the American Society for Testing and
Materials (ASTM) in a document entitled ``Standard Terminology Relating
to Abatement of Hazards from Lead-Based Paint in Buildings and Related
Structures''. HUD will accept comments on all definitions not taken
directly from the statute.
VII. General Requirements
A. Part 36
1. Cross Cutting Issues
The requirements described below apply, in varying degrees, to HUD
programs, as well as to some programs of other Federal agencies,
covered under Part 36.
(a) Pamphlet. Section 1012 of Title X amends the Lead-Based Paint
Act to add new subparagraph 42 U.S.C. 4822(a)(1)(A), which requires the
provision of a lead-based paint hazard information pamphlet (``lead
hazard information pamphlet'') to all purchasers and tenants of housing
receiving Federal assistance. The lead hazard information pamphlet must
be the one developed by EPA pursuant to Section 406 of TSCA (added
pursuant to Section 1021 of Title X).
The lead hazard information pamphlet mandated by Section 406 of
TSCA contains certain information, such as the health risks associated
with exposure to lead, the presence of lead in residential property,
approved and recommended methods of evaluation and reduction of lead-
based paint hazards, how to obtain a list of certified evaluation and
reduction contractors, and an informational statement that State and
local governments may impose additional lead-based paint requirements.
Section 1018 of Title X also contains a lead hazard information
pamphlet requirement. Under Section 1018, all sellers and landlords of
virtually all pre-1978 target housing are required to provide
purchasers and tenants with the same lead hazard information pamphlet
prior to sale or lease. Since Section 1018 of Title X separately
requires all new purchasers and new tenants of target housing,
including federally owned residential property and housing receiving
Federal assistance, to receive the lead hazard information pamphlet,
the Department reads ``purchasers and tenants'' in new subparagraph 42
U.S.C. 4822(a)(1)(A) to cover ``all existing owner-occupants and
tenants that were residing in a residential dwelling unit covered by
this proposed rule prior to the effective date of the regulation
implementing Section 1018 of Title X,'' since these owner-occupants and
tenants would not have received the pamphlet upon initial occupancy.
The proposed rule avoids duplicating the requirements set out in
Section 1018 by not addressing situations in which the Department,
another Federal agency, or a recipient or subrecipient of Federal
housing assistance already has a duty as a seller or lessor to provide
the pamphlet to new purchasers or tenants. That requirement will be set
forth in 24 CFR Part 35, Subpart H.
(b) Notice. New subparagraph 42 U.S.C. 4822(a)(1)(F) of the Lead-
Based Paint Act requires the provision of notice to occupants
describing the nature and scope of any risk assessment, paint
inspection, or reduction activities undertaken. The Department has
interpreted this new provision to require the following: (1) Within 15
calendar days of receiving a risk assessment or paint inspection report
or both, a written notice must be provided to tenants 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 tenants of the actual hazard reduction
activities conducted that contains a summary of the nature, scope and
results of the hazard reduction activities, a contact for more
information, and information on any 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 a
centrally located easily accessible common area or distributed to each
occupied dwelling unit, must be of a size and type that are easily
read, must be made available in an accessible format for persons with
disabilities, to the extent practicable, and if possible must be
provided in the tenant's primary language.
The language of 42 U.S.C. 4822(a)(1)(F) does not specifically
require that separate notices be provided to tenants, initially after
an evaluation has been conducted, and again after hazard reduction
activities have been undertaken. However, in the Department's view,
withholding information on the results of an evaluation until after
hazard reduction activities have been performed and the lead-based
paint hazard resolved, poses a serious risk to tenants. The sooner
tenants are provided with this information, the better they can protect
their children and themselves.
The notification requirements of 42 U.S.C. 4822(a)(1)(F) also do
not specify the manner in which the notices must be distributed. The
proposed rule provides the option of ``posting the notices in a
centrally located, easily accessible common area, or distributing it to
each occupied dwelling unit.'' In general, the Department believes that
matters of notice format and distribution are best determined by the
property owner or other recipient of Federal housing assistance. The
Department requests comment on the content, format and distribution of
the notices.
(c) Paint Repair. HUD's current lead-based paint regulations often
require visual inspection and ``treatment of defective paint
surfaces.'' That treatment usually consists of scraping deteriorated
paint and in some cases repainting. Paint repair under this proposed
rule involves similar visual evaluation and treatment for deteriorated
paint surfaces (when the deteriorated paint surface exceeds a de
minimis size), but additional safeguards are added. Unless a paint
inspection or risk assessment has indicated the absence of lead-based
paint, a deteriorated paint surface must be assumed to contain lead.
Therefore, when paint repair is conducted, the proposed regulation
requires various protections to ensure that the paint is repaired in a
manner that does not cause exposure to lead-based paint. The
requirements include: (1) The use of protective coverings on the floor
or ground; (2) occupant protections that entail restricted access to a
worksite until after all paint repair and cleanup have been completed;
(3) use of wet methods and other work practices to control leaded dust;
(4) surface preparation and cleaning before repainting; and (5) cleanup
of the worksite. These additional provisions will help to ensure that
lead-based paint hazards are reduced without unintended negative human
health or environmental consequences.
The paint repair requirements in this proposed rule often apply
where residential properties receive a minimum amount of housing
assistance from HUD, and the relationship between
[[Page 29178]]
HUD and the recipient of HUD assistance is not continuous. The subparts
of part 36 concerning HUD's single family and multifamily insured
programs require only paint repair, as well as the subpart concerning
HUD-owned properties without sufficient appropriations to carry out the
requirements of Section 1013 of Title X. Paint repair is also required
by CPD non-rehabilitation programs and the Department's tenant-based
rental assistance programs, though these programs have an additional
requirement of dust testing for residential properties built before
1950. In addition, HUD has extended the paint repair requirements to
residential properties that receive less than $5,000 in HUD funds for
rehabilitation, because these rehabilitation activities are limited and
the paint disturbance is minimal. Rather than requiring interim
controls or abatement activities for this category of rehabilitation,
the Department has chosen a ``do no harm'' policy that requires paint
repair and cleanup of the surfaces to be disturbed by rehabilitation.
(d) EBLs. The use of children with elevated blood lead levels
(EBLs) as a trigger to initiate evaluation or reduction of lead-based
paint hazards does not exist in any of the new requirements under Title
X. Rather, Congress makes clear that the Department is to focus on
preventing the poisoning of children, rather than reacting to children
with EBLs (See Section 566(a)(1), Housing and Community Development Act
of 1987 (``HCD Act of 1987'') (Pub. L. 100-242, enacted February 5,
1988); p. 243, Conference Report for the HCD Act of 1987 (Report 100-
426, November 6, 1987); and Title X, Senate Report 102-332). While the
Department's primary focus in this rule is on prevention, HUD feels a
special duty to children who have already been poisoned by lead-based
paint. HUD cannot ignore the possible connection between a child's EBL
and the condition of the dwelling unit where the child lives.
Therefore, in each subpart of Part 36 in which HUD maintains a
continuing relationship with the recipients of Federal housing
assistance, or where an EBL child resides in residential property owned
by the Federal government, additional requirements are included to
evaluate and reduce lead-based paint hazards when an EBL child is
identified. Often, the EBL requirements for a particular program are an
acceleration of the lead-based paint hazard evaluation and reduction
requirements for that program. In some instances, such as in the case
of tenant-based rental assistance, the EBL response may be more
stringent than the proposed requirements for that program.
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, dated May 13, 1994), HUD has
also added language to the proposed rule requiring an HA or other
individual or organization (e.g. grantee or participating jurisdiction)
administering a Section 8 or CPD-funded tenant-based rental assistance
program, to the extent practicable, to attempt to obtain the names and
addresses of EBL children from local public health agencies on an
annual basis. They would then match this information with the names and
addresses of families receiving tenant-based rental assistance. The
intent of this requirement is not for case-management of an EBL child,
but to ensure that families with young children that receive Section 8
tenant-based rental assistance are obtaining housing free of lead-based
paint hazards. At the same time, the Centers for Disease Control and
Prevention (``CDC'') is urging local public health agencies to provide
EBL-related information to HAs. While the Department understands the
value of sharing EBL information, we would like to receive public
comment concerning two issues: (1) Does this requirement impose an
undue administrative burden on the individual or organization
administering the tenant-based rental assistance program? (2) Does this
requirement adversely impact the privacy rights of families receiving
tenant-based rental assistance?
(e) Other Required Practices. Depending on the type of activity
conducted and the degree of Federal involvement, the parties that are
required to perform lead-based paint hazard evaluation and reduction
activities must also perform certain protective activities such as
occupant protection, worksite preparation, cleanup, clearance,
monitoring, and control of new hazards. With respect to paint repair,
specific protective activities are included in subpart D of Part 37.
Further, the parties that are required to perform lead-based paint
hazard evaluation and reduction activities may be subject to Department
of Labor worker protection requirements set out at 29 CFR 1926.62, and
EPA waste disposal requirements set out at 40 CFR 260-270. These
requirements are not described in Part 37.
2. Subpart A--General Requirements
Subpart A sets out general requirements for all federally owned
residential property and housing receiving Federal assistance. This
subpart includes a provision concerning the scope of part 36, as well
as general exemptions from coverage under part 36. These exemptions
include (1) residential property constructed on or after January 1,
1978; (2) single room occupancy (SRO) dwelling units; (3) residential
property designated exclusively for the elderly or persons with
disabilities, unless a child who is less than six resides or is
expected to reside (the Department interprets the phrase, ``a child who
is less than six * * * is expected to reside,'' to include any pregnant
woman residing in a dwelling unit constructed before 1978 that is
covered under this subpart); (4) residential property undergoing
emergency repairs in response to a natural disaster; and, (5)
residential property required to undergo visual evaluation, paint
repair and cleanup for which documentation is provided that a paint
inspection has been completed in accordance with part 37 and indicates
the absence of lead-based paint on all surfaces. The subpart sets out a
general provision for parties required to undertake paint inspection or
risk assessment, whereby they may choose to assume the presence of
lead-based paint or lead-based paint hazards or both and to conduct
hazard reduction activities. There is also a provision allowing for a
reasonable delay for evaluation, paint repair, hazard reduction or
abatement activities on exterior painted surfaces due to unsuitable
weather conditions.
Subpart A also includes provisions concerning the following: a
prohibition against the use of paint containing more than 0.06 percent
by weight of lead in federally owned residential property and housing
receiving Federal assistance; prohibited methods of paint removal;
compliance with Federal laws and authorities; compliance with State and
local laws, ordinances, codes or regulations governing lead-based
paint; a statement that Part 36 is intended to set out the Department's
minimum requirements for notification, evaluation and reduction of
lead-based paint hazards and that these requirements do not preclude
the recipient of Federal assistance from conducting more rigorous
activities; Secretarial waivers; and the consequences of noncompliance
with the requirements of parts 36 and 37. Terms which are used
throughout parts 36 and 37 are defined in this subpart.
[[Page 29179]]
3. Subpart B--State Procedures
This subpart allows States, Indian tribes and insular areas that
are recipients of Federal housing assistance or that are administering
a Federal housing assistance program established by the Secretary, to
develop their own alternative lead-based paint procedures to implement
Federal requirements for evaluating and reducing lead-based paint and
lead-based paint hazards in the following programs: (1) Rehabilitation
and (2) Community Planning and Development (CPD) non-rehabilitation.
HUD requirements for these programs are set out in subparts L and M of
part 36 and in the relevant subparts of part 37. Specifically, subpart
B identifies the minimum HUD requirements for each of these programs,
but permits States, Indian tribes and insular areas to determine how
best to meet these requirements. For instance, Title X requires
abatement of lead-based paint hazards in the course of rehabilitation
projects receiving more than $25,000 per unit in Federal funds. Under
subpart B, an eligible State, Indian tribe or insular area is permitted
to establish its own abatement procedures, as long as the clearance
standards set out in subpart B are met. This subpart is intended to
provide States, Indian tribes and insular areas with latitude in
developing lead-based paint hazard reduction measures that are as
protective as Federal requirements, but which may be better suited to
the specific economic and technological needs of that unit of
government.
In order to qualify under this subpart, a State shall have in place
a certification program for individuals and firms engaged in lead-based
paint activities which has been approved by EPA pursuant to Sections
402 and 404 of TSCA. A State shall also have in place alternative
evaluation and hazard reduction procedures that have been approved by
the Secretary prior to implementation of the procedures. Further HUD
approval is required if the State procedures are substantially modified
at any time after implementation. A unit of general local government
located in a State that has HUD-approved alternative lead-based paint
procedures may also adopt these procedures or choose to follow the
applicable provisions of parts 36 and 37.
In developing its own lead-based paint procedures, a State shall
adhere to general requirements set out in subpart B concerning the
lead-based paint hazard information pamphlet, notice of risk
assessment, paint inspection, paint repair and hazard reduction
activities, prohibited practices and occupant protection. Specific
minimum requirements for each program covered under subpart B and
clearance standards for dust and soil tests established by HUD are also
set out. These requirements and clearance standards must be
incorporated into a State's alternative procedures. In preparing this
subpart, the Department received input concerning the possibility of
alternative evaluation and reduction procedures for States during
meetings with HUD clients (discussed in Paragraph IV C above). HUD
requests additional comments concerning this subpart, from State
officials in particular, and from the general public.
4. 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, 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. At a minimum, for residential property
constructed prior to 1960, the Federal agency shall conduct a paint
inspection, risk assessment and abatement of all lead-based paint
hazards. Section 1013 does not specifically address when the abatement
of hazards must take place and, in HUD's view, abatement may be made a
condition of sale with sufficient funds escrowed when a sale is to a
non-occupant purchaser.
For residential property constructed after 1959 and before 1978,
the Federal agency shall conduct a paint inspection and risk
assessment, and the results shall be provided to purchasers as
specified under Section 1018 of Title X. Title X gives the Secretary
authority to waive the requirements for residential property
constructed after 1959 and before 1978 in which a federally or
privately funded risk assessment performed by a certified risk assessor
shows an absence of lead-based paint hazards, or that a paint
inspection, performed by a certified paint inspector, shows an absence
of lead-based paint. (Although the strict language of Section 1013
states ``federally-funded'' risk assessment or paint inspection, the
Department has extended the waiver to privately funded risk assessments
or paint inspections, so long as they are performed by a certified risk
assessor or paint inspector.) In addition, the Secretary may waive the
requirements for residential property constructed after 1959 and before
1978 if a clearance test conducted by a certified risk assessor shows
an absence of lead-based paint hazards. If abatement of lead-based
paint hazards is performed, additional protective measures must be
taken under the general heading of ``other required practices.'' Those
practices were discussed in Section VII.A.1(d) of the Preamble above,
and are further described in Section VII.B. of the Preamble below.
In the absence of appropriations sufficient to cover the costs of
these lead-based paint requirements, the requirements shall not apply.
As discussed in Section V.A. of the Preamble, the Department expects a
Federal agency to determine whether to establish alternative lead-based
paint requirements for its agency if sufficient funds are not
appropriated to carry out the requirements of this subpart.
5. 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 (per project) of project-based assistance.
For the reasons described in Section VII.A.4. above, the subpart
basically restates the requirements set out in Section 1012.
Each tenant residing in a dwelling unit prior to the effective date
of the regulation implementing Section 1018 of Title X shall receive a
lead hazard information pamphlet. Each owner shall provide notices to
the tenants of risk assessment and hazard reduction activities
conducted in the dwelling unit. Each owner shall also complete a risk
assessment in accordance with a schedule determined by the Federal
agency, and shall conduct hazard reduction to reduce lead-based paint
hazards identified in the risk assessment. In the case of an EBL child
residing in a dwelling unit, the owner shall immediately conduct risk
assessment and hazard reduction in that unit. The owner shall also
comply with the other required practices set forth in this subpart.
It should be noted that the Department is concerned that if interim
controls were required under this subpart in accordance with the
minimum procedure specified in Title X, owners would not have had the
option of conducting abatement
[[Page 29180]]
activities if they were recommended in the risk assessment report and
receiving a rent adjustment if needed. As a consequence, under this
subpart both interim controls and abatement are acceptable responses to
lead-based paint hazards.
6. Subpart E--Single Family Insured Property
This subpart sets out the requirements for the Department's single
family insured property programs. Manufactured homes and property
improvement loan programs under Title I of the National Housing Act are
not covered under this regulation, as neither program is the subject of
``an application for mortgage insurance.'' 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. For those mortgage insurance programs
that are covered, the extent of Federal involvement is limited and,
consequently, the requirements under Title X are also limited.
For a covered refinancing transaction, each occupant residing in a
dwelling unit prior to the effective date of the regulation
implementing Section 1018 of Title X, shall receive the lead hazard
information pamphlet. If an initial application for mortgage insurance
is made, the purchaser would receive the lead hazard information
pamphlet under the requirements for sale transactions in Section 1018
of Title X.
For single family property that receives HUD mortgage insurance,
before the mortgage is endorsed for insurance, the appraiser shall
conduct a visual evaluation of painted surfaces to identify
deteriorated paint. The appraiser need not be a certified paint
inspector or risk assessor because the purpose of the visual evaluation
is only to determine the presence of deteriorated paint and visual
evaluation does not identify the content of lead in paint. Deteriorated
paint surfaces must be repaired and cleanup conducted. With limited
exceptions, the commitment or other approval document must contain the
requirement that all deteriorated paint surfaces are to be repaired and
cleanup conducted before the mortgage is endorsed for insurance. An
escrow fund may be established to conduct paint repair and cleanup
after endorsement of the mortgage under specific conditions. As stated
above, due to the limited relationship between the purchaser and the
Federal government, HUD deemed it impracticable to include requirements
for an EBL child.
If documentation is provided to the appraiser that a limited paint
inspection of specific deteriorated paint surfaces has been completed
in accordance with part 37 and indicated the absence of lead-based
paint on the particular surfaces, the requirements of this subpart
would not apply with respect to those surfaces. Many of the
requirements in subpart E are similar to the current lead-based paint
requirements for single family insurance programs, except that proper
paint repair and cleanup procedures for deteriorated paint are now
specified in part 37.
7. Subparts F and G--Disposition of HUD-Owned Single Family Property
(With and Without Sufficient Appropriations)
These subparts set out requirements for the disposition (i.e. sale)
of HUD-owned single family property. The requirements of subpart F
would apply in the event the Secretary determines that there are
sufficient appropriations to cover the costs of evaluation and
reduction of lead-based paint hazards as set out in Section 1013 of
Title X. The requirements of subpart G would apply in the event the
Secretary determines that there are not sufficient appropriations to
cover the costs of evaluation and reduction of lead-based paint hazards
as set out in Section 1013 of Title X. See the discussion in Section V
A. of the Preamble above.
Under subpart F, for single family property constructed prior to
1960, HUD shall conduct a paint inspection and risk assessment, and
abate identified lead-based paint hazards before the closing of the
sale of the property. Abatement may be made a condition of sale to a
non-owner occupant purchaser, with sufficient funds escrowed. A
residential property is exempt from the requirements of this subpart if
extensive damage requires major rehabilitation or demolition.
For residential property constructed after 1959 and before 1978,
HUD shall conduct a paint inspection and risk assessment before the
closing of the sale of the property. Results of the paint inspection
and risk assessment would be provided to purchasers in accordance with
the disclosure requirements of Section 1018. Title X gives the
Secretary authority to waive the paint inspection and risk assessment
requirements if a federally or privately funded risk assessment,
performed by a certified risk assessor, shows an absence of lead-based
paint hazards; or that a federally or privately funded paint
inspection, performed by a certified paint inspector, shows an absence
of lead-based paint. In addition, the Secretary may waive the
requirements for residential property constructed after 1959 and before
1978 if a clearance test conducted by a certified risk assessor shows
an absence of lead-based paint hazards. The Department shall also
comply with the other required practices set forth in subpart F.
Under subpart G, before the closing of the sale of a residential
property, HUD shall conduct a visual evaluation of all paint surfaces
to identify deteriorated paint. The Department shall repair
deteriorated paint surfaces and perform cleanup of the work area in
accordance with Part 37, before the closing of the sale of the
property. If the Department retains ownership of a residential property
for more than one year, monitoring must be conducted in accordance with
subpart J of Part 37 and paint repair and cleanup conducted if
necessary, unless a residential property is leased during this period
(in which case HUD may make monitoring a condition of the lease). In
the case of a sale to a non-occupant purchaser, paint repair and
cleanup may be made a condition of sale, with sufficient funds
escrowed. HUD may be exempt from the requirements of this subpart for a
specific deteriorated paint surface if a limited paint inspection has
been completed and shows an absence of lead-based paint on the specific
surface. A residential property is also exempt from the requirements of
this subpart if extensive damage requires major rehabilitation or
demolition. In addition, the Department may be exempt from the
repainting requirements described in this subpart if weather conditions
make repainting infeasible or if the property is scheduled for major
rehabilitation or demolition.
Risk assessments are not specifically required for federally owned
residential properties under Section 1013. In fact, Section 1013
contains language requiring inspections for lead-based paint and lead-
based paint hazards. However, Title X itself defines ``inspection'' as
an investigation for lead-based paint on a surface-by-surface basis,
and defines a ``risk assessment'' as an investigation for lead-based
paint hazards, which include lead in dust, paint and soil. Since
Section 1013 requires actions to be taken to treat lead-based paint
hazards, the Department interprets Section 1013 to also require risk
assessments of federally owned residential properties in subpart F.
Neither subpart F nor G requires specific action regarding an EBL
child. Less than 1 percent of the single family property is occupied
when HUD acquires ownership, and, in most cases,
[[Page 29181]]
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 of acquisition. Because
of the limited occupancy and relatively high turnover of HUD-owned
single family property, the Department thought it impracticable to
impose EBL requirements. Existing EBL requirements for single family
property owned by the Department have proven to be impractical and
difficult to implement.
8. Subpart H--Multifamily Insured Property
This subpart sets out the requirements for the Department's
multifamily insured property programs. As with the single family
insured property programs, 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. Again, because the extent of Federal involvement is
limited in multifamily insured property programs, the requirements
under Title X are also limited.
For a covered refinancing transaction, each tenant that was
residing in a dwelling unit prior to the effective date of the
regulation implementing Section 1018 of Title X shall receive the lead
hazard information pamphlet. As with the single family insured property
program, a new purchaser applying for mortgage insurance would receive
the lead hazard information pamphlet under the requirements of Section
1018. Before the issuance of the firm commitment, the Department's or
the sponsor's architect shall conduct a visual evaluation of painted
surfaces to identify deteriorated paint. The architect need not be a
certified paint inspector or risk assessor because the purpose of the
visual evaluation is only to determine the presence of deteriorated
paint and the visual evaluation does not identify the content of lead
in paint. Deteriorated paint surfaces must be repaired and cleanup of
the work area conducted. As stated above, due to the limited
relationship between the purchaser and the Federal government, HUD
deemed it impracticable to include requirements for an EBL child. In
cases where multifamily mortgage insurance is combined with another HUD
program (i.e. project-based assistance), the EBL requirements for that
program would apply.
If documentation is provided that a limited paint inspection of
specific deteriorated paint surfaces has been completed in accordance
with part 37 and indicates the absence of lead-based paint on a
specific surface, the requirements of this subpart would not apply with
respect to that surface. Many of the requirements in subpart H are
similar to the current lead-based paint requirements for multifamily
insurance programs, except that proper paint repair and cleanup
procedures for deteriorated paint are now specified in part 37.
9. Subpart I--Project-Based Assistance
This subpart sets out the requirements for the Department's
project-based rental assistance programs. In this program area, the
Department's involvement is ongoing and tied to the residential
structure itself; consequently, the lead-based paint hazard evaluation
and reduction requirements in Section 1012 are more expansive. Although
Title X only requires the Secretary to establish lead-based paint
procedures for residential property receiving more than $5,000 in
project-based assistance, Subpart I includes additional minimal lead-
based paint procedures (i.e. the procedures for tenant-based rental
assistance) for multifamily property receiving less than $5,000 in
project-based assistance from HUD. The Department also applies these
minimum lead-based paint procedures to single family properties
receiving Section 8 Moderate Rehabilitation or Project-Based
Certificate assistance from HUD. As stated above, the Department wanted
to extend some limited lead-based paint protections to properties
receiving minimal project-based assistance and also wanted to relieve
single family owners with limited financial resources from being
required to comply with the extensive lead-based paint requirements for
project-based assistance.
Section 1012 of Title X amends the Lead-Based Paint Act to add
subparagraph 42 U.S.C. 4822(a)(1)(B), which requires, at a minimum,
risk assessments and interim controls in accordance with a schedule
determined by the Secretary. Senate Report 102-332, page 117, states
that under Title X, ``Risk assessments would be performed in all
housing receiving project-based Federal assistance in order to
determine the level of risk and notify the residents of existing
hazards.'' The Department has decided that the term ``project-based''
should be given its traditional meaning--housing assistance payment
programs where the funding is tied to the residential property and not
to the tenant (``tenant-based'' housing assistance payments). 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.
The statute, 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.
pre-1960 dwelling units prior to 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 does not anticipate issuing a final
lead-based paint rule in time to meet the January 1, 1996 deadline.
Therefore, the Department has delayed the risk assessment schedule, but
maintained the same performance intervals (based on the construction
date of the residential property) as set out in the statute:
residential property constructed before 1960--(proposed to be 2 years
after the effective date of this rule); residential property
constructed after 1959 and before 1965--by (proposed to be 4 years
after the effective date of this rule); residential property
constructed after 1964 and before 1971--by (proposed to be 6 years
after the effective date of this rule); and residential property
constructed after 1970 and before 1978--by (proposed to be 8 years
after the effective date of this rule). As stated above, the Department
has revised the risk assessment schedule to provide adequate time for
education and training in order to implement the new technical
standards, requirements and procedures set forth in this proposed rule
(See Effective Date and Qualifications for Conducting Lead-Based Paint
Hazard Evaluation and Reduction Activities). The proposed rule also
allows the Secretary to develop an alternative schedule, if necessary.
This provision was included to provide the Department with flexibility
in working with HUD clients whose housing assistance payment (HAP)
contracts are due to expire close to the required date for completing
risk assessments. The Department invites comments on the risk
assessment schedule for housing programs receiving project-based
assistance. Specifically, HUD requests comments on how to address the
risk assessment requirements of Title X in residential property where
the HAP contracts are due to expire within the next few years.
Under this subpart, each tenant residing in a dwelling unit prior
to the effective date of the regulation
[[Page 29182]]
implementing Section 1018 of Title X shall receive a lead hazard
information pamphlet. Each owner shall provide notices of evaluation,
paint repair and hazard reduction activities to tenants. Each owner
shall complete a risk assessment prior to execution of the HAP
contract. If a risk assessment report identifies lead-based paint
hazards, the owner is required to develop a hazard reduction plan
(``reduction'' is defined as measures to reduce or eliminate lead-based
paint hazards including interim controls or abatement) proposing hazard
reduction activities consistent with the recommendations of the risk
assessment report, and a schedule for completing hazard reduction
activities. The hazard reduction plan will supplement the owner's
application for rent increase and shall be submitted to HUD and a copy
must be provided to any Contract Administrator or HA in conjunction
with the next rent increase request, but no later than 120 calendar
days after completion of the risk assessment. HUD will review each plan
submitted by an owner and may recommend alternative reduction
activities if the activities proposed are too costly. Before approving
a hazard reduction plan or recommending alternative activities, the HUD
official reviewing the plan shall also conduct a limited environmental
review in accordance with 24 CFR part 50. A copy of the Department's
determinations must be transmitted to any Contract Administrator or HA.
If no rent increase is necessary to implement the plan, the owner shall
certify to HUD that the contents of the plan are consistent with Part
37; in this instance, the owner does not have to submit the actual plan
to HUD. However, certification must be submitted to the Department and
a copy must be provided to any Contract Administrator or HA no later
than 120 calendar days after completion of the risk assessment.
It should be noted that the Department is concerned that if interim
controls are required under this subpart in accordance with the minimum
procedure specified in Title X, owners will not have the option of
conducting abatement activities if they were recommended in the risk
assessment report and receiving a rent adjustment if needed. As a
consequence, under this subpart, both interim controls and abatement
are acceptable responses to lead-based paint hazards.
In the event risk assessment and hazard reduction are not completed
prior to execution of the HAP contract, a risk assessment must be
completed and a hazard reduction plan submitted during the housing
assistance payment period. In the latter case, each risk assessment
must be completed according to a schedule which places a priority on
older dwelling units that are more likely to have lead-based paint. HUD
welcomes comments concerning the timing of the implementation of hazard
reduction for lead-based paint hazards identified in the risk
assessment.
In the case of an EBL residing in a dwelling unit, the owner shall
immediately conduct risk assessment and hazard reduction in the
dwelling unit, rather than adhere to the established schedule. The
owner shall also report the name and address of any known EBL child to
the appropriate State or local health agency. When conducting hazard
reduction, the owner shall also comply with the other required
practices set forth in subpart I.
10. Subparts J and K--Disposition of HUD-Owned and Mortgagee-in-
Possession Multifamily Property (With and Without Sufficient
Appropriations)
These subparts set out requirements for the disposition (i.e. sale)
of HUD-owned multifamily property. The requirements of subpart J would
apply in the event the Secretary determines that there are sufficient
appropriations to cover the costs of evaluation and reduction of lead-
based paint hazards as set out in Section 1013 of Title X. The
requirements of subpart K would apply in the event the Secretary
determines that there are not sufficient appropriations to cover the
costs of evaluation and reduction of lead-based paint hazards as set
out in Section 1013 of Title X. See the discussion in Section V.A. of
the Preamble above.
Under subpart J, for multifamily property constructed prior to
1960, HUD shall conduct a paint inspection and risk assessment before
publicly advertising the property for sale. Abatement of all identified
lead-based paint hazards must be completed no later than conveyance of
the title or before a foreclosure sale required by the Secretary. If
the disposition program provides for repairs to be performed by the
purchaser, abatement may be included in the required repairs. A
residential property is exempt from the requirements of this subpart if
extensive damage requires major rehabilitation or demolition.
For residential property constructed after 1959 and before 1978,
HUD shall conduct a paint inspection and risk assessment before
publicly advertising the property for sale. Results of the paint
inspection and risk assessment would be provided to purchasers in
accordance with the disclosure requirements of Section 1018. Title X
gives the Secretary authority to waive the paint inspection and risk
assessment requirements if a federally or privately funded risk
assessment, performed by a certified risk assessor, shows an absence of
lead-based paint hazards; or that a federally or privately funded paint
inspection, performed by a certified paint inspector, shows an absence
of lead-based paint. In addition, the Secretary may waive the
requirements for residential property constructed after 1959 and before
1978 if a clearance test conducted by a certified risk assessor shows
an absence of lead-based paint hazards. The Department shall also
comply with the other required practices set forth in subpart J.
Under subpart K, before publicly advertising a residential property
for sale, HUD shall conduct a visual evaluation of all paint surfaces
to identify deteriorated paint. The Department shall repair
deteriorated paint surfaces and perform cleanup of the work area in
accordance with Part 37, no later than conveyance of the title by HUD
or before a foreclosure sale caused by the Secretary. If the
disposition program provides for repairs to be performed by the
purchaser, paint repair and cleanup may be included in the required
repairs. If the Department retains ownership of a residential property
for more than one year, monitoring must be conducted in accordance with
subpart J of Part 37 and paint repair and cleanup conducted if
necessary. HUD may be exempt from the requirements to repair a specific
deteriorated paint surface if a limited paint inspection has been
completed and shows an absence of lead-based paint on the specific
surface. A residential property is exempt from the requirements of this
subpart if extensive damage requires major rehabilitation or
demolition.
Again, risk assessments are not specifically required for federally
owned residential properties under Section 1013. In fact, Section 1013
contains language requiring inspections for lead-based paint and lead-
based paint hazards. However, Title X itself defines ``inspection'' as
an investigation for lead-based paint on a surface-by-surface basis,
and defines a ``risk assessment'' as an investigation for lead-based
paint hazards, which include lead in dust, paint and soil. Since
Section 1013 requires actions to be taken to treat lead-based paint
hazards, the Department interprets Section 1013 to also require risk
assessments of federally owned residential properties in subpart J.
Unlike the requirements for single family property in subparts F
and G,
[[Page 29183]]
subparts J and K require specific actions regarding an EBL child. As
stated above, with respect to single family property, less than 1
percent of the single family property is occupied when HUD acquires
ownership and all HUD-owned single family property must be vacant
within three months of the transfer of ownership to HUD. This is not
the case for multifamily property. Therefore, if a child with an EBL
resides in a HUD-owned multifamily dwelling unit, the Department shall
immediately conduct risk assessment and interim controls in that unit.
The Department shall also report the presence of an EBL child, and any
risk assessment or interim controls conducted, to the appropriate State
or local health agency.
11. Subpart L--Rehabilitation
This subpart sets out the requirements for the Department's
programs which provide assistance for rehabilitation. The majority of
this assistance is provided through the Department's CPD programs.
Other rehabilitation assistance is provided under the Flexible Subsidy-
Capital Improvement Loan Program (CILP) for multifamily property. This
subpart does not include other HUD programs that may be tied to
rehabilitation activities, but do not provide direct funding of such
activities. These include the Department's insurance programs and the
Section 8 Moderate Rehabilitation program, which are covered in other
subparts of the proposed rule. Public housing modernization programs
are not included under this subpart.
Since rehabilitation work typically disturbs a painted surface and,
therefore, the result of Federal involvement may be to create or
exacerbate a lead-based paint hazard condition, the requirements under
Title X for rehabilitation or renovation assistance are the most
stringent. Title X requirements for rehabilitation vary based on
whether federal rehabilitation assistance is above or below $25,000.
The subpart discusses the manner in which rehabilitation costs are
calculated for different programs. For purposes of determining whether
the rehabilitation cost is under or over $25,000, the Department will
look at the hard costs of rehabilitation and not at soft costs, such as
administrative fees. Lead-based paint hazard evaluation and cleanup
activities will not be considered part of the rehabilitation costs. The
Department recognizes that it may be difficult in practice to
distinguish between rehabilitation and lead-based paint hazard
evaluation and reduction activities and welcomes comments on this
issue.
There are three general exemptions in this subpart. Rehabilitation
that does not disturb a painted surface is exempt from the requirements
of this subpart for the reasons discussed below. Also, if a grantee,
participating jurisdiction or CILP recipient certifies to the
Department that a dwelling unit undergoing federally funded
rehabilitation has been previously abated of all lead-based paint, the
requirements of this subpart do not apply. A dwelling unit may also be
exempt from the requirement to conduct a limited paint inspection if
the grantee, participating jurisdiction or CILP recipient certifies
that a paint inspection has been completed and indicates the absence of
lead-based paint.
Although many of the requirements under this subpart refer to the
grantee or participating jurisdiction, as is the case with many CPD
programs, the grantee or participating jurisdiction may require
virtually all of these functions to be performed by a subrecipient or
other entity administering the financial assistance. A subrecipient can
be a public or private nonprofit agency, authority or organization, or
a for-profit entity, selected by the grantee or participating
jurisdiction to administer all or a portion of the financial
assistance. An owner or developer receiving Federal rehabilitation
assistance for a residential property is not considered a subrecipient
for the purposes of carrying out that project.
All tenants or owner-occupants shall be provided with the lead
hazard information pamphlet by the grantee, participating jurisdiction
or CILP recipient. In all cases where evaluation, paint repair and
hazard reduction activities are undertaken, each grantee, participating
jurisdiction or CILP recipient shall post or distribute a notice to
tenants 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.
For housing receiving an average of less than $5,000 per unit in
Federal funds for rehabilitation, HUD is requiring the grantee,
participating jurisdiction or CILP recipient to conduct a visual
evaluation of all painted surfaces to identify deteriorated paint.
Before occupancy of a vacant dwelling unit or, where a dwelling unit is
occupied, before rehabilitation work begins, the subrecipient or other
entity (defined to include an owner) shall repair deteriorated paint
surfaces and perform cleanup in accordance with subpart D of part 37.
HUD has created this special category for housing receiving less than
$5,000 in Federal funds for rehabilitation, for which the evaluation
and hazard reduction requirements are more lenient, because the
rehabilitation activity is limited and the paint disturbance minimal.
Rather than exclude this category from coverage under the proposed
rule, the Department chose a ``do no harm'' policy when minimally
disturbing a painted surface. This category of housing receiving an
average of less than $5,000 per unit in Federal funds for
rehabilitation, however, should not be confused with the category of
housing established in the statute receiving less than $5,000 in
project-based assistance.
For housing receiving an average of $25,000 or less per unit (but
greater than $5,000) in Federal funds for rehabilitation, the grantee,
participating jurisdiction or CILP recipient is required to conduct a
paint inspection of surfaces to be disturbed in the course of the
rehabilitation. A paint inspection must be completed before occupancy
of a vacant dwelling unit or, where a dwelling unit is occupied, before
rehabilitation work begins, in accordance with subpart C of part 37. In
addition, each grantee, participating jurisdiction or CILP recipient
shall complete a risk assessment in a sample of the federally assisted
dwelling units (including common areas and exteriors) in accordance
with subpart B of part 37. A risk assessment must be completed before
occupancy of a vacant dwelling unit or, where a dwelling unit is
occupied, before rehabilitation work begins, and may be done in
conjunction with the paint inspection. Hazard reduction activities are
required to address any lead-based paint hazards found.
For housing receiving an average of more than $25,000 per unit in
Federal funds for rehabilitation, the grantee, participating
jurisdiction or CILP recipient is required to conduct a paint
inspection of surfaces to be disturbed in the course of the
rehabilitation. A paint inspection must be completed before occupancy
of a vacant dwelling unit or, where a dwelling unit is occupied, before
rehabilitation work begins, in accordance with subpart C of part 37. In
addition, each grantee, participating jurisdiction or CILP recipient
shall also complete a risk assessment in a sample of the federally
assisted dwelling units (including common areas and exteriors) in
accordance with subpart B of part 37. A risk assessment must be
completed before occupancy of a vacant dwelling unit or, where a
dwelling unit is occupied, before rehabilitation work begins, and may
be done in conjunction with the paint inspection. Abatement of
[[Page 29184]]
lead-based paint hazards identified on a surface to be disturbed by
rehabilitation is required. Each grantee, participating jurisdiction or
CILP recipient shall conduct hazard reduction activities if lead-based
paint hazards are identified in the risk assessment on a surface not to
be disturbed by rehabilitation.
Because the relationship between the Department and the grantee,
participating jurisdiction or CILP recipient is not ongoing, HUD deemed
it impracticable to include requirements for an EBL child. The grantee,
participating jurisdiction or CILP recipient, however, shall comply
with the other required practices set forth in subpart L.
The Department includes risk assessments as a requirement for
rehabilitation programs although risk assessments are not clearly
required for rehabilitation activities under Title X. The statute does,
however, in new subparagraphs (a)(1)(D) and (E), require reduction or
abatement of lead-based paint hazards. Grantees, participating
jurisdictions or CILP recipients receiving rehabilitation funds,
therefore, are required to perform a risk assessment to determine where
lead-based paint hazards exist, so they can then reduce or abate all
such hazards.
New subparagraph (a)(1)(C) requires inspection for the presence of
lead-based paint prior to federally funded renovation or rehabilitation
likely to disturb painted surfaces. HUD has interpreted this language
to require inspection of the painted surfaces to be disturbed in the
course of federally funded rehabilitation (the term ``rehabilitation''
includes ``renovation''). HUD's interpretation does not require
inspection of all painted surfaces in the dwelling unit to be
rehabilitated. HUD has attempted to focus paint inspection and
abatement efforts on those surfaces where the greatest hazard may be
created. This focus seems to be consistent with legislative intent. The
Senate Report, cited supra, at page 117, specifically states that
``prior to beginning work likely to disturb painted surfaces, owners
would be required to have an paint inspection performed to determine
the lead content of the paint.''
After the inspection of the painted surfaces to be disturbed is
performed, for rehabilitation receiving an average of $25,000 or less
(but more than $5,000) per unit, the grantee, participating
jurisdiction or CILP recipient is responsible for reduction of any
lead-based paint hazards identified in the risk assessment in the
entire dwelling unit. HUD has extended the hazard reduction requirement
to the entire dwelling unit to correspond with the areas covered in the
risk assessment. For rehabilitation receiving an average of $25,000 or
more per unit, grantee, participant jurisdiction or CILP recipient is
responsible for abating lead-based paint hazards on surfaces to be
disturbed by the rehabilitation, and reducing lead-based paint hazards
identified in the risk assessment in the rest of the dwelling unit.
12. Subpart M--Community Planning and Development (CPD) Non-
Rehabilitation Programs
This subpart sets out the requirements for certain CPD programs
which provide Federal funding for acquisition, leasing, tenant-based
rental assistance, operating or support services. With the exception of
tenant-based rental assistance, since the Federal funding for these
programs is often provided by the HUD grantees or participating
jurisdictions to the property owner or developer in a single instance
and the relationship is not ongoing, the requirements under Title X are
limited. For the CPD tenant-based rental assistance program, the
requirements of subpart O of Part 36 apply, except for the provision of
the lead hazard information pamphlet. Instead, the lead hazard
information pamphlet must be distributed in accordance with the
requirements set out in subpart M (Sec. 36.256). Although all the
requirements under this subpart refer to the grantee or participating
jurisdiction, the grantee or participating jurisdiction may require
virtually all of these functions to be performed by the subrecipient
administering the financial assistance. A subrecipient can be a public
or private nonprofit agency, authority or organization, or a for-profit
entity, selected by the grantee or participating jurisdiction to
administer all or a portion of the financial assistance. An owner or
developer of an assisted residential property is not considered a
subrecipient for the purposes of carrying out that project.
All tenants or owner-occupants shall be provided with the lead
hazard information pamphlet by the grantee or participating
jurisdiction. Before providing financial assistance to an owner, each
grantee or participating jurisdiction shall conduct a visual evaluation
of all painted surfaces to identify deteriorated paint. For housing
constructed before 1950, each grantee or participating jurisdiction
shall also conduct dust sampling to determine the presence of lead-
contaminated dust. Before occupancy of a vacant dwelling unit or, where
a dwelling unit is occupied, immediately after receipt of financial
assistance, the grantee or participating jurisdiction shall repair any
deteriorated paint surfaces and perform cleanup of the worksite in
accordance with part 37. For housing constructed before 1950, if dust
sampling identifies lead-contaminated dust, the grantee or
participating jurisdiction shall conduct cleanup of the horizontal
surfaces in the room, dwelling unit or common areas where lead-
contaminated dust is located. The grantee or participating jurisdiction
is exempt from the requirement to repair a specific deteriorated paint
surface if a limited paint inspection has been completed in accordance
with part 37 and indicates an absence of lead-based paint on the
specific surface.
As stated above, because the relationship between the HUD grantee
or participating jurisdiction and the property owner or developer is
not ongoing, HUD deemed it impracticable to include requirements for an
EBL child, except in the case of the CPD tenant-based rental assistance
programs.
13. Subpart N--Public and Indian Housing Programs
Section 1012 of Title X does not specifically add new requirements
to public or Indian housing. The Senate Report, cited infra, at page
118, states that Congress did not intend the changes to the Lead-Based
Paint Act introduced by Title X to pose a barrier to ongoing efforts by
PIH to conduct risk assessments, 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.''
Nevertheless, in order to consolidate all of the lead-based paint
requirements for HUD in a single place, the Department is including
subpart N for public and Indian housing in this rulemaking. This
subpart implements the requirements set out in 42 U.S.C. 4822(d)(1) and
(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 in the subpart
discussion.
If a tenant has resided in a public or Indian housing unit prior to
the effective date of the regulation implementing Section 1018, the HA
shall provide the tenant with the new lead hazard information pamphlet.
In all cases where lead-based paint or lead-based paint hazard
evaluation or reduction activities are undertaken, the HA shall post or
distribute a notice to tenants of the results of the evaluation. The HA
shall also post or distribute a
[[Page 29185]]
notice of the results of the hazard reduction or abatement activities.
The notification requirement is intended to respond, in part, to the
recommendations made in the 1993 General Accounting Office (GAO) report
entitled, Lead-Based Paint Poisoning: Children in Public Housing Are
Not Adequately Protected (GAO/RCED-93-138).
The Lead-Based Paint Act requires HAs to complete paint inspections
by December 6, 1994. The proposed rule adds a supplemental requirement
to the regulations for HAs that have not completed paint inspections:
any paint inspection not completed by the effective date of this rule
must then be immediately conducted in accordance with part 37. If a
paint inspection was completed prior to the effective date of this
regulation, the Department strongly encourages HAs to conduct quality
control activities prescribed by PIH to ensure that paint inspections
were conducted properly. PIH set out these quality control procedures
in Notice PIH 95-8, issued February 9, 1995.
If a paint inspection has indicated the presence of lead-based
paint, each HA shall complete a visual evaluation, dust and soil test,
in accordance with part 37, in the housing project before January 1,
1999. If a paint inspection has indicated that no lead-based paint is
present, the HA shall complete a soil test (with limited exceptions) in
the housing project. A housing project shall be exempt from these
requirements if the HA can certify that it has been abated of all lead-
based paint and lead-based paint hazards; or that a paint inspection,
and a risk assessment conducted in accordance with part 37, was
completed prior to January 1, 1999 and identifies the absence of any
lead-based paint and lead-based paint hazards in the housing project.
As discussed in Section V.C. of the Preamble above, HAs conducting
dust and soil testing for public and Indian housing are not required by
this proposed rule to be certified in accordance with the new EPA
requirements for lead-based paint activities. However, HAs were
required to complete paint inspections by December 6, 1994 and many HAs
have already taken the initiative to conduct risk assessments in
housing projects; consequently, it seems burdensome to impose new
certification requirements for dust and soil testing conducted in
public and Indian housing. Since the Department has not applied
certification requirements to dust and soil testing conducted by HAs,
the individual or firm conducting these activities on behalf of the HA
shall be trained in lead hazard evaluation and additional descriptive
material concerning soil and dust testing has been added to subpart B
of part 37.
As stated in Section II.A. of the Preamble above, most of HUD's
lead-based paint requirements will focus on reducing lead-based paint
hazards in residential property, pursuant to Title X. The notable
exception to this policy continues to be the required abatement of all
lead-based paint and lead-based paint hazards in public and Indian
housing, as set forth in 42 U.S.C. 4822(d) (1) and (3).
Each HA shall abate all identified lead-based paint and lead-based
paint hazards during the course of physical improvements conducted
under modernization, or as soon as practical after completing the
evaluation requirements set out in this subpart. Each HA shall also
conduct interim controls to treat lead-based paint hazards identified
in dust and soil testing prior to abatement of these hazards; initial
interim controls must be conducted within 30 calendar days of
completing the evaluation requirements set out in this subpart.
Whenever hazard reduction is conducted, the HA shall comply with the
other required practices set forth in Sec. 36.286 of this subpart. A
public or Indian housing project shall be exempt from this requirement
if the HA can provide documentation to the Department that interim
controls are already being conducted in accordance with part 37.
To be consistent with the Title X definition of a lead-based paint
hazard, the Department thought it necessary to include the requirement
for dust and soil sampling. The Department recognizes that many HAs
have taken the initiative to conduct risk assessments in housing
projects. The Department does not intend to penalize those HAs at the
forefront of lead-based paint hazard control, and provides certain
evaluation exemptions to address this situation. Where a lead-based
paint hazard is identified and is not being addressed prior to a HA's
planned abatement schedule, the proposed rule requires the HA to
implement interim controls.
If an EBL child is identified in a public or Indian housing
project, the HA shall complete a risk assessment of the dwelling unit
in accordance with part 37 within 15 calendar days of notification of
the EBL condition, and shall conduct hazard reduction of identified
lead-based paint hazards in accordance with part 37 within 15 calendar
days of receipt of the risk assessment report. The HA may relocate the
family to a post-1978 or previously evaluated dwelling unit that was
found to be free of lead-based paint hazards. Because many HAs have
completed paint inspection and abatement in their housing projects, the
Department has determined that relocation to a dwelling unit free of
lead-based paint hazards is a reasonable option to conducting risk
assessment and interim controls. In addition, the HA shall report the
name and address of the EBL child to the State or local health agency.
The requirements for conducting risk assessment and hazard
reduction activities when an EBL child is identified and reporting EBL
information to the State or local health agency, and the requirement to
notify tenants whenever lead-based paint or a lead-based paint hazard
is identified, are intended to address, in part, GAO's concerns about
protecting children in public housing from lead-based paint poisoning
(See Lead-Based Paint Poisoning: Children in Public Housing Are Not
Adequately Protected, (GAO/RCED-93-138), and Secretary Cisneros'
written reply to Senator John Glenn, past-Chairman, Committee on
Government Affairs, United States Senate, December 20, 1993).
14. Subpart O--Tenant-Based Rental Assistance
This subpart sets out new lead-based paint requirements for the
Department's tenant-based rental assistance programs. The Title X Task
Force on Lead-Based Paint Hazard Reduction and Financing issued
recommendations on reducing lead-based paint hazards in the Section 8
housing stock. The Task Force's June 1995 report, discussed in Section
IV.B. of the Preamble above, provided the Department with a set of
national ``benchmark standards'' to reduce lead-based paint hazards in
private rental property. To the extent practicable, the proposed rule
incorporates these standards into the lead-based paint requirements for
tenant-based rental assistance programs.
As stated in Section V.A., the Department believes that Congress
did not intend for HUD to apply the new minimum procedures for lead-
based paint hazard notification, evaluation and reduction set out in
Title X to tenant-based rental assistance. However, HUD does not
believe that Congress intended to abolish HUD's current procedures,
which serve to protect, in a minimal way, the recipients of this type
of housing assistance. In this proposed rule, HUD continues to require
tenant-based rental property to meet the minimal standards for lead-
based paint found in the Department's HQS. The proposed rule slightly
modifies these
[[Page 29186]]
standards to incorporate the spirit of Title X and its new lead-based
paint terminology, as well as incorporating some of the recommendations
of the Title X Task Force.
The requirements set forth in subpart O apply only to dwelling
units in which a family with a child under age six resides. The scope
of this subpart is more narrow than the scope of other program
subparts, and deviates from Title X's directive to address lead-based
paint hazards in all federally owned residential property or housing
receiving Federal assistance (with limited exceptions for the elderly,
disabled and single room occupancy dwelling units). The Department
thought it reasonable to continue to restrict the lead-based paint
requirements for the tenant-based rental assistance programs to
dwelling units in which a family with a child under age six resides
because of the program's ability to identify any changes in the
composition of an assisted family. In addition, the HAs are able to
monitor the property owner's compliance with HQS through initial and
periodic dwelling unit inspections. These two safeguards will help to
ensure that an HA will know whether a child under age 6 resides in a
dwelling unit. It should be noted that an owner that refuses to rent a
dwelling unit to a family with a child under the age of six may be in
violation of the provisions of the Fair Housing Act prohibiting
discrimination on the basis of familial status.
Because this subpart focuses on dwelling units with young children
who are at greatest risk of lead poisoning, the Department has added a
requirement for dust testing to the existing requirement for visual
evaluation in order to identify potential lead-based paint hazards.
This additional protection applies to initial inspections of rental
property constructed prior to 1950, where lead-based paint hazards are
more prevalent.
If a tenant has resided in a dwelling unit prior to the effective
date of the regulation implementing Section 1018, the HA shall provide
the tenant with a lead hazard information pamphlet at the next periodic
dwelling unit inspection. Prior to approval by the HA for a family to
lease a dwelling unit constructed before 1950, an HQS inspector shall
conduct a visual evaluation of all painted surfaces to identify
deteriorated paint and conduct dust sampling in accordance with part
37. Since the proposed rule does not require a complete risk
assessment, and the Department recognizes the cost constraints faced by
HAs, the HQS inspector need not be certified as a paint inspector or
risk assessor in accordance with Section 402 of TSCA, in order to
conduct dust tests. Rather, this subpart requires the HQS inspector to
be trained in lead-based paint hazard evaluation that must include
proper procedures for dust sampling and additional descriptive material
concerning dust testing has been added to subpart B of part 37.
The owner shall repair deteriorated paint surfaces before occupancy
of a vacant dwelling unit constructed before 1950, or where the pre-
1950 dwelling unit is occupied, within 30 days of notification of the
results of the visual evaluation. If dust sampling identifies lead-
contaminated dust above the applicable level, cleanup of the horizontal
surfaces in the room, dwelling unit or common areas where lead-
contaminated dust is located must be completed prior to occupancy. If
dust sampling does not indicate lead-contaminated dust, cleanup of the
worksite must be completed prior to occupancy.
Prior to approval by the HA for a family to lease a dwelling unit
constructed after 1949, an HQS inspector shall conduct a visual
evaluation of all painted surfaces to identify deteriorated paint. The
owner shall repair deteriorated paint surfaces and perform cleanup of
the worksite prior to occupancy or, if the dwelling unit is unoccupied,
within 30 calendar days of the results of the visual evaluation.
If an EBL child is identified in a dwelling unit receiving Federal
assistance under this subpart, the owner shall complete a risk
assessment of the dwelling unit where the EBL child resides within 15
calendar days of notification, and conduct interim controls to treat
the identified lead-based paint hazards within 15 calendar days of
receiving the risk assessment report. The HA shall also, to the extent
practicable, attempt to obtain the names and addresses of EBL children
from local public health agencies on an annual basis and match this
information with the names and addresses of families receiving tenant-
based rental assistance. As discussed in VII.A.1.(c) of the Preamble
above, these additional lead-based paint requirements imposed on the
tenant-based rental assistance programs when an EBL child is identified
respond to concerns about protecting children living in Section 8
tenant-based rental property from lead poisoning (See the United States
General Accounting Office report entitled ``Children in Section 8
Tenant-Based Housing are not Adequately Protected'' (GAO/RCED-94-137,
dated May 13, 1994), and are consistent with the recommendations of the
Title X Task Force.
The requirements of this subpart do not apply for specific
deteriorated paint surfaces if the owner certifies that a limited paint
inspection was completed with respect to the specific surfaces and
indicated an absence of lead-based paint on those surfaces. An owner
shall also be exempt from the evaluation and hazard reduction
requirements of this subpart if certification is provided to the HA
that the dwelling unit has been abated of all lead-based paint hazards.
The Department considered several options for addressing lead-based
paint hazards in the tenant-based rental assistance program. The
requirements set forth in subpart O attempt to strike a balance between
the tradition of limiting Federal requirements imposed on the private
housing stock associated with tenant-based rental assistance programs,
and the recognition that as HUD's Reinvention shifts to tenant-based
rental assistance instead of subsidies to public housing agencies,
protections must continue to be provided to HUD clients living in
private rental property (See Section III of the Preamble above).
B. Part 37
The requirements set forth in part 37 are designed to ensure that
lead-based paint hazard evaluation and reduction activities are
performed safely and effectively. They prescribe ``how'' these
activities are to be accomplished. In writing part 37, the Department
sought to balance the competing objectives of effectiveness and
affordability by including only the requirements needed to achieve
acceptable performance. The Department also incorporated performance-
oriented requirements wherever possible, thereby allowing residential
property owners to use the most cost-effective methods for their
properties and to take advantage of cost-saving improvements in
technology as they occur. The requirements included in part 37 are
based on the HUD Guidelines, which contain standard methods for
effectively identifying and controlling lead-based paint hazards, given
current knowledge and technology.
1. Subpart A--General Requirements
Subpart A explains the purpose and applicability of part 37, noting
that paint inspection, risk assessment and abatement activities
(including clearance examinations) must be conducted by paint
inspectors, risk assessors and abatement supervisors and workers
certified in accordance
[[Page 29187]]
with EPA regulations (40 CFR 745.226). Part 37 provides interim
requirements for these activities when paint inspectors, risk assessors
and abatement supervisors and workers are not certified in accordance
with EPA regulations. Recognizing that the supply of certified paint
inspectors, risk assessors and abatement supervisors and workers may be
inadequate at the effective date of this rule, this subpart also
authorizes the Secretary to establish temporary qualifications for
these individuals until such time as there is a sufficient number of
certified personnel. In addition, Subpart A notes that any lead-based
paint hazard evaluation and reduction activities that are not included
in 40 CFR 745.226 (e.g. paint repair, interim controls) are to be
conducted in accordance with the standards and methods set out at 24
CFR part 37. The Department requests comment on the level of detail
necessary in 24 CFR part 37 to carry out the lead-based paint hazard
evaluation and reduction requirements found at 24 CFR part 36.
Finally, Subpart A also includes a reference to the HUD Guidelines
for more specific information, and a requirement for the accreditation
of laboratories performing lead-based paint analyses by the EPA
National Lead Laboratory Accreditation Program. Definitions applicable
to 24 CFR part 36 are also applicable to part 37.
2. Subpart B--Risk Assessment
A risk assessment, as prescribed in subpart B, consists of a visual
assessment to determine the condition of painted surfaces in the
building and the need for structural repairs; limited environmental
sampling of deteriorated paint, dust, and soil; and a written report
that describes identified lead-based paint hazards and lists acceptable
abatement or interim control methods for controlling these hazards.
This subpart specifies, in some detail, elements of a visual
assessment, the conditions that constitute lead-based paint hazards,
and the requirements for testing paint, dust, and soil to determine
whether such hazards are present. This subpart is written
prescriptively because of the following reasons: (1) The risk
assessment requirements found in part 37 are intended to be HUD's
minimum requirements for performing risk assessments as required by 24
CFR part 36. The Department is concerned that without the guidance of
this subpart, a risk assessor may include additional testing protocols
that would not accurately reflect the Department's intent. In such a
case, a HUD client may misinterpret the risk assessor's recommendations
as the Department's minimum requirements for risk assessment. This
could result in significant increases in cost to the Department and its
clients; (2) the concept of risk assessment is new; (3) there does not
exist at the time of this writing a well established consensus standard
for risk assessments; (4) very few risk assessors have been trained and
certified; and (5) housing authority employees with some degree of
training, but not certified, will be performing dust and soil sampling
for public housing and require more detailed guidance. The Department
requests comments on these procedures particularly interpreting dust
sample results to determine what surfaces should be cleaned.
Subpart B requires that a risk assessment be performed by risk
assessors certified under EPA certification regulations. Recognizing
that the supply of certified risk assessors may be inadequate at the
effective date of this proposed rule, this subpart authorizes the
Secretary to establish temporary qualifications for risk assessors
until such time when State programs can produce a sufficient number of
certified personnel.
This subpart incorporates EPA guidance for lead in dust, paint, and
soil. At the time of this writing, EPA had not yet published the
health-based standards mandated by Section 403 of TSCA (added pursuant
to Section 1021 of Title X) that will apply to lead in dust (including
dust in carpeted floors), paint or soil. When the health-based
standards are published, HUD will consider modifying the requirements
set out in 24 CFR parts 36 and 37, accordingly.
Because risk assessors will need guidance in evaluating surfaces
with wall-to-wall carpeting, HUD has included in this proposed rule a
dust standard for carpeted floors equal to the standard for hard
surface floors. HUD believes that a carpet dust standard that parallels
the threshold for hard floors provides a reasonable level of
protection. HUD requests information on levels of lead dust in carpets
that would be dangerous to young children, the prevalence of lead dust
in carpets in the nation's housing stock, and effective and feasible
methods of removing lead dust from carpets.
Under this subpart, risk assessments of multifamily properties must
evaluate the conditions in every dwelling unit, except when five or
more similar dwelling units are present. Among similar dwelling units,
a targeted sample of dwelling units may be used as the basis for
evaluating the nature and extent of lead-based paint hazards among all
units. This subpart establishes parameters that must be satisfied when
selecting a targeted sample of dwelling units.
The HUD Guidelines permit the use of a lead-based paint hazard
screen in properties that are in good physical condition. This
technique is a modified risk assessment using limited paint sampling
and dust sampling of the floors and window troughs. The standards for
passing a lead-based paint hazard screen are more stringent than those
for passing a risk assessment. This procedure was excluded from the
proposed rule because the results of sampling dust in window troughs
would probably fail the standards set out in part 37 in a large
majority of dwelling units. Window troughs are essentially an exterior
window surface that is frequently in poor condition due to weathering;
troughs are subject to continuous contamination and, therefore, are
difficult to clean to the extent necessary in order to satisfy the
standards set out in part 37.
3. Subpart C--Paint Inspection
A paint inspection, as prescribed in Subpart C, is a surface-by-
surface investigation of all similarly painted surfaces in a dwelling
unit, both interior and exterior, to determine the presence and
location of lead-based paint. In multifamily properties, the paint
inspection also includes an investigation of surfaces in the common
areas of buildings.
This subpart specifies the minimum requirements for selecting
surfaces to inspect in single family and multifamily property and
identifies acceptable methods for testing the lead content of the paint
on these surfaces with portable x-ray fluorescence (XRF) analyzers and,
if necessary, laboratory analysis of paint samples. Paint inspections
of multifamily property of 21 or more dwelling units may rely on the
results from a random sample of units selected in accordance with the
procedures established by this subpart. This sample is more extensive
than that required in current HUD regulations and provides a 95 percent
confidence level.
The purpose of a paint inspection is to identify the location of
lead-based paint in a dwelling unit or building, not the presence of
lead-based paint hazards. Paint inspections, as required by part 36,
aid in planning abatement in modernization of public and Indian
housing, and rehabilitation or renovation work by identifying the
surfaces where precautions must be taken during construction to avoid
creating lead-based paint hazards.
[[Page 29188]]
The requirements for paint inspection, like those for risk
assessment, are much more prescriptive than existing regulations. This
is so because (1) correct paint inspection procedures are essential to
ensure accurate results, and (2) new paint inspection procedures have
resulted from recent research by EPA and HUD.
4. Subpart D--Paint Repair
Paint repair constitutes the minimum treatment for deteriorated
paint surfaces. It requires only surface preparation by acceptable
methods, surface cleaning, repainting, and a modified cleanup of the
immediate worksite. This subpart exempts treatment of deteriorated
paint surfaces below a de minimis level.
5. Subpart E--Interim Controls
Subpart E, like subpart B concerning risk assessment, describes in
prescriptive terms the requirements for performing effective interim
control treatments to reduce lead-based paint hazards. Interim controls
refer to a set of hazard reduction measures designed to achieve
temporary control of identified lead-based paint hazards. The
requirements are prescriptive because the concept of interim controls
is new, and there is no established training or certification program
for interim control workers. For this reason, the regulation requires
these workers to be supervised by a certified abatement supervisor.
There are four basic types of interim control treatments: paint
stabilization, friction and impact surface controls, dust controls, and
soil controls. In addition to establishing requirements for these
treatments, this subpart identifies methods that may not be used as
interim controls. The subpart also specifies circumstances when interim
controls are not acceptable hazard reduction methods. This subpart
exempts treatment of deteriorated paint surfaces below a de minimis
level.
Interim controls often have a lower initial cost than abatement
methods. However, interim controls require regular monitoring and
reevaluation because they are not permanent treatments. The cost of
monitoring should be considered when deciding whether to use interim
controls or to abate a lead-based paint hazard. For some hazards,
abatement methods will be more cost-effective than interim controls
when the cost of monitoring is considered.
6. Subpart F--Abatement
This subpart, which establishes the requirements for abatement, is
written largely in performance terms (e.g. permanently eliminate the
lead-based paint hazard) since abatement procedures are well
established, and a significant number of qualified abatement
supervisors and workers currently exists.
The regulation defines component replacement, enclosure, removal,
and encapsulation as acceptable methods of abatement. It also prohibits
seven methods of paint removal because they can easily contaminate the
environment and/or are dangerous for workers to use. One abatement
method, encapsulation, is prescribed in more detail, because there are
no performance standards for encapsulants at this time.
There is no exclusion for deteriorated paint surfaces below a de
minimis level from abatement requirements in subpart F. The two types
of HUD programs that are most affected by the abatement requirements
set out in this subpart are public and Indian housing projects and
rehabilitation assistance programs. HAs are required under the Lead-
Based Paint Act to abate all lead-based paint and lead-based paint
hazards. For rehabilitation programs providing more than $25,000 in
Federal rehabilitation assistance, abatement must occur on all lead-
based paint surfaces to be disturbed by the rehabilitation. As a
result, it is the Department's view that where abatement is required,
an exclusion for a de minimis level would not be appropriate.
7. Subpart G--Occupant Protection and Worksite Preparation
This subpart establishes minimum requirements for protecting
occupants of dwelling units undergoing lead-based paint hazard
reduction activities from exposure to lead-based paint hazards while
this work is being performed. It also establishes a performance
requirement for preparing the hazard reduction worksite to prevent the
uncontrolled release of lead-contaminated dust and debris beyond this
area.
Lead-based paint hazard reduction activities frequently generate
lead-based paint hazards while work is underway. Subpart G requires
that the occupants of a dwelling unit undergoing hazard reduction not
be permitted to enter the worksite until hazard reduction activities
have been completed and the area has passed a clearance examination
performed in accordance with subpart I. It also requires that occupant
belongings be protected from contamination while work is in progress.
If occupants cannot safely live in a dwelling unit while lead-based
paint hazard reduction is being performed, they must be temporarily
relocated to a suitable dwelling unit until work is completed and the
dwelling unit has passed a clearance examination. This subpart
describes those circumstances when tenants can safely remain in the
dwelling unit while hazard reduction is being performed. HUD recognizes
that temporary relocation adds to the cost of hazard reduction and can
inconvenience occupants. The Department believes that the provisions of
this subpart require relocation only when it is essential to the safety
of the occupants.
Protections are also needed to prevent any hazards generated during
hazard reduction from spreading beyond the worksite. The level of
protection needed to meet these requirements will vary depending on the
type and extent of hazards to be treated, the methods of treatment, and
the characteristics of the dwelling unit. HUD has not established a
detailed set of protective measures that apply to all worksites because
in some cases such protections would exceed those needed while in
others, the protections would be inadequate. Instead, HUD is requiring
that a properly certified risk assessor, abatement supervisor, or
trained lead-based paint designer/planner determine the specific
protections that must be used in a worksite to meet the requirements of
this subpart.
8. Subpart H--Cleanup
Subpart H describes required cleanup activities following lead-
based paint hazard reduction activities. Cleanup is the process of
removing debris and dust.
The regulation specifies two types of cleanup activities: daily
cleanup, and final cleanup. Daily cleanup is required at the end of
each work day after hazard reduction activities. When cleaning debris,
workers must use practices that minimize the generation of dust.
Cleaning the troughs of windows is required in this process since they
are frequent dust traps and can be cleaned along with the window sill.
Troughs are not, however, required to be tested in the clearance
examinations. Finally, the containment area's protective coverings must
be examined and any defects repaired.
Final cleanup is performed after all hazard reduction activities
have been completed. Final cleanup requirements establish safe
practices for the removal of dust, debris and the protective coverings
of the containment area. If the residential property is not required to
pass a clearance examination, final cleanup may begin no sooner than
one hour after hazard reduction activities have ceased.
[[Page 29189]]
The Department requests comments on the level of detail and the
necessity of this subpart for the following reasons. If the final
performance requirement is the safe reoccupancy of the residential
property after passing a clearance examination, the need for cleanup
regulations may be questionable. Although proper cleanup is a critical
factor in satisfying clearance standards, the ultimate test is
clearance which is likely not to occur if cleanup is neglected or
incomplete. This is not intended to eliminate the requirement for
modified cleanup in properties which have undergone lead-based paint
hazard reduction work such as paint repair, but do not require a
clearance examination.
9. Subpart I--Clearance
Subpart I establishes the minimum requirements for performing
clearance examinations following lead-based paint hazard reduction.
Clearance consists of a visual examination, dust testing and soil
testing. A visual examination is done to ensure that all hazard
reduction work was properly completed and to check for any remaining
dust and debris. Dust testing is also required to confirm that no lead
dust hazards remain in the residential property. This subpart
establishes requirements for the number and location of dust and soil
samples.
Clearance examinations may begin one hour after completing final
cleanup. This is a significant change from previous guidance which
required a 24-hour waiting period. The Department has acted upon
analysis that indicates lead-contaminated dust settles much faster than
originally determined--most of it within 1 hour.
Clearance examinations must be performed in all dwelling units and
common areas in a multifamily property with less than 21 units. In
properties with more than 21 dwelling units, a random sample of units
may be examined if the dwelling units are selected in accordance with
the unit sampling requirements established in subpart C. The regulation
requires that components, rooms, or common areas that fail clearance
testing be re-cleaned and retested until they pass.
10. Subpart J--Monitoring
Subpart J prescribes requirements for monitoring of residential
properties to assure the effectiveness of the interim controls required
in subpart E or other lead-based paint hazard reduction activities. If
a residential property has no lead-based paint or has had all lead-
based paint removed or permanently controlled (excluding
encapsulation), monitoring is not required.
Monitoring consists of two types of activities: visual surveys by
the property owner and a reevaluation by a risk assessor. A visual
survey examines painted surfaces, lead-based paint hazard reduction
treatments, and ground cover for signs of lead-based paint hazards. Any
identified hazards must be promptly and safely corrected. In most
cases, visual surveys will be performed annually.
A reevaluation is a modified risk assessment that includes a visual
assessment of painted surfaces and lead-based paint hazard reduction
treatments in conjunction with limited dust and soil sampling to
determine if any hazards have developed since the most recent hazard
reduction treatments were performed. This subpart establishes the
minimum requirements for performing visual assessments, as well as dust
and soil sampling. In multifamily properties with five or more similar
dwelling units, a targeted sample of units selected in accordance with
the unit selection requirements of subpart B, or a random sample
selected according to requirements of subpart C, may be used as the
basis for reevaluating all such units.
Reevaluations must be performed by a certified risk assessor (40
CFR 745.226) in accordance with the minimum schedule requirements
established by this subpart. As part of each reevaluation, the risk
assessor must prepare a report documenting the presence or absence of
lead-based paint hazards, and acceptable control options for new
hazards.
C. Regulatory Assessment
HUD has prepared a Regulatory Impact Analysis (RIA) that examines
the costs and benefits of the proposed regulatory action in conjunction
with this proposed rule. The major findings in the RIA are presented in
this summary, organized into four sections appearing below: Cost-
Benefit Analysis; Sensitivity Analysis and Regulatory Alternatives;
Economic Impacts; and Environmental Justice. The complete document is
available for inspection in the Office of the Rules Docket Clerk, Room
10276, 451 Seventh Street, SW, Washington, DC.
1. Cost-Benefit Analysis
The analysis of net benefits in the RIA reflects costs and benefits
associated with the first year of hazard evaluation and reduction
activities under the proposed rule. These costs and benefits, however,
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 that first
year, and for children living in or visiting that unit during the
second and subsequent years after hazard reduction activities.
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
RIA presents estimated benefits of increased lifetime earnings using
two different discount rates for lifetime earnings--3 percent and 7
percent. For estimates of costs and all other benefits, the RIA uses a
7 percent rate.
Employing a 3 percent discount rate of the lifetime earnings
estimates, the RIA concludes that benefits of first-year activities are
$1,538.2 million; costs are only $458 million. Thus the estimated net
benefit is $1,080.2 million. If a 7 percent discount rate is used for
lifetime earnings benefits, the present value of the benefits of the
proposed rule associated with first year activities is estimated to be
$497 million, and estimated costs remain at $458 million. The proposed
rule would therefore realize a net-benefit of only $39 million using
the 7 percent discount rate. Benefits and costs of the proposed rule
using both discount rates are shown in Tables 7A and 7B.
While the Office of Management and Budget specifies 7 percent as
the appropriate discount rate for most regulatory analyses, EPA's
analysis of this issue (in the 1994 RIA for the proposed regulations
implementing sections 402 and 404 of the Toxic Substances Control Act)
has concluded that a 3 percent discount rate best reflects the social
rate of time preference for annualized, non-capital costs and benefits.
OMB guidance recognizes that a special social rate of time preference
is appropriate when conducting intergenerational analysis. An
intergenerational discount rate is applicable to the proposed rule
because the costs will be borne by adult taxpayers, and lifetime
earning benefits will be realized by the children and grandchildren of
these adult taxpayers.
An intermediate approach, not quantified in the RIA, could have
used a real discount rate based on the long-term borrowing costs of the
Federal government. The 7 percent rate used in most regulatory analyses
is intended to
[[Page 29190]]
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 proposed 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, and the long-term AFR adjusted for the implicit price
deflator results in real AFRs of approximately 4 to 5 percent for the
past 6 years. Therefore, benefits could be discounted at the same real
AFR rate (i.e., 4 to 5 percent).
By presenting results using both 3 and 7 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.
Cost Estimation. The methodology used to estimate annual costs for
the proposed rule is based on the following formula:
Regulatory Cost=(unit cost) x (unit cost frequency) x (number of
affected units)
The ``unit cost'' estimates reflect the average estimated costs
associated with specific hazard evaluation and reduction activities in
a ``typical'' single or multifamily housing unit affected by the
proposed rule. These unit cost estimates are based on interviews with
lead-based paint hazard evaluation and abatement contractors, state
officials, and other experts familiar with lead-based paint hazard
evaluation and reduction costs. These cost estimates are also
consistent with those presented in HUD's ``Comprehensive and Workable
Plan for the Abatement of Lead-Based Paint in Privately Owned Housing''
(1990) and in the Lead-Based Paint Hazard Reduction and Financing Task
Force report, ``Putting the Pieces Together: Controlling Lead Hazards
in the Nation's Housing'' (1995).
Table 1 presents estimated average costs for lead-based paint
hazard evaluation and both full and incremental cost estimates for
hazard reduction activities. Incremental paint repair and abatement
costs are those additional costs associated with the rule beyond the
costs of non-lead-based paint repair and rehabilitation work in the
absence of lead-based paint. Only incremental costs are incurred under
rehabilitation programs, and full costs under other programs are offset
by the estimated market values of routine paint repair and
rehabilitation work.
Relocation costs are not included in this analysis, because HUD
expects that relocation of occupants will rarely be required as a
result of the proposed regulations. Most interim controls and small-
scale abatements can be conducted without relocation by carefully
containing dust to work areas and keeping occupants out of work areas.
Relocation is usually only necessary in cases of extensive abatement of
lead-based paint throughout the living areas of a housing unit. In the
proposed regulations, abatement of lead-based paint or lead-based paint
hazards is required in only two programmatic situations: public and
Indian housing, and substantial rehabilitation projects receiving more
than $25,000 per unit in Federal funds. This proposed rule, however,
does not initiate the full abatement requirement in public and Indian
housing; that requirement has been in place since 1986. In the case of
substantial rehabilitation projects, it is unlikely that such housing
will be occupied, so relocation will not be necessary. It is possible
that extensive interim controls in occupied housing may necessitate
relocation; but HUD believes this will be rare because, through the
hazard control plan provision, HUD has given property owners receiving
project-based assistance the flexibility to schedule such activity at
the time of unit turnover. It is possible that extensive interim
controls may sometimes be needed in units occupied by children with
elevated blood-lead levels in public and Indian housing or in tenant-
based assistance programs. HUD has not been able to estimate the
frequency with which this will occur, but is of the opinion that it
will be rare and that any such relocation costs will not materially
affect the results of this cost-benefit analysis.
``Unit cost frequencies'' reflect the extent of required hazard
evaluation activities under the proposed rule and the occurrence
frequencies of different lead-based paint hazards that trigger hazard
reduction requirements. Occurrence frequency estimates in this analysis
generally reflect data from the National Survey of Lead-Based Paint in
Housing completed in 1990 and are presented in Table 2. Estimates are
provided for three construction-year intervals: Pre-1940, 1940-1959,
and 1960-1977.
The ``number of affected units'' is the annual number of HUD-owned
or assisted units affected by the proposed rule. Data gathered from
each HUD program office indicates that more than 1.6 million housing
units are affected Department-wide during the first year after
promulgation. The number of affected units is shown in Table 3 by
program and construction period.
The estimated incremental cost of the proposed rule during the
first year of hazard evaluation and reduction activities is $458
million, or an average of $283 per unit, if it is assumed there are no
appropriations to implement section 1013 of the Act for HUD-owned
housing. The estimated incremental cost with appropriations is $572
million, or an average of $353 per unit. The estimated incremental cost
by program is presented in Table 4.
Table 1.--Estimated Costs Per Dwelling Unit for Hazard Evaluation and
Reduction Activities
------------------------------------------------------------------------
Cost per Cost per
Unit cost activity single multifamily
family unit unit
------------------------------------------------------------------------
Hazard Evaluation:
Visual Evaluation......................... $10 $5
Risk Assessment (RA)...................... 375 260
RA and PI................................. 550 400
Paint Inspection (PI)..................... 400 300
2 composite dust tests.................... 70 70
Clearance................................. 150 120
Reevaluation.............................. 271 217
Hazard Reduction:
Exterior paint repair..................... 1,000 100
[[Page 29191]]
Interior paint repair..................... 500 500
Incremental exterior paint repair......... 100 10
Incremental interior paint repair......... 20 20
Incremental interior paint repair with
rehab.................................... 60 40
Window work............................... 300 200
Other friction/impact work................ 300 200
Soil cover................................ 200 10
Exterior abatement........................ 5,000 250
Interior abatement........................ 3,000 2,000
Incremental exterior abatement............ 1,000 50
Incremental interior abatement............ 600 400
Area cleanup.............................. 75 75
Unit cleanup.............................. 450 300
------------------------------------------------------------------------
Table 2.--Estimated Occurrence Frequencies for Costs and Benefits
----------------------------------------------------------------------------------------------------------------
(Percentage of all units): Freq.
Unit cost occurrence trigger --------------------------------------
Pre-1940 1940-1959 1960-1977
----------------------------------------------------------------------------------------------------------------
Multifamily Sample Testing:
Risk assessment/RA and PI............................................ 16 16 16
Paint inspection only................................................ 23 23 23
Interior LBP Disturbed by Rehab:
Single family interior <5k........................................... 45="" 22="" 11="" other="" interior="" disturbed="" by="" rehab....................................="" 80="" 40="" 20="" deteriorated="" paint:="" interior="" paint.......................................................="" 41="" 24="" 9="" single="" family="" exterior="" deteriorated="" paint............................="" 42="" 28="" 12="" multifamily="" exterior="" deteriorated="" paint..............................="" 21="" 14="" 6="" dust="" and="" soil="" hazards:="" window="" sill="" dust="">500 ug/sq. ft...................................... 54 14 13
Floor dust >100 ug/sq. ft............................................ 36 17 4
Bare soil >2000 ug/g................................................. 27 4 0
Deteriorated LBP:
Interior LBP......................................................... 16 6 3
Single family det. exterior LBP...................................... 28 12 6
Multifamily det. exterior LBP........................................ 14 6 3
Single family deteriorated interior plus exterior LBP................ 44 18 9
Multifamily deteriorated interior plus exterior LBP.................. 30 12 6
Combined and Partial Hazards:
Sill and/or floor dust............................................... 61 26 16
Interior deteriorated LBP without lead floor dust.................... 3 3 2
Interior deteriorated paint without lead floor dust.................. 14 13 5
Sill and/or floor dust and/or interior deteriorated LBP.............. 4 29 18
Paint repair area dust............................................... 8 3 1
----------------------------------------------------------------------------------------------------------------
Table 3.--HUD-Owned or -Assisted Housing Units
----------------------------------------------------------------------------------------------------------------
Number of units
Subparts --------------------------------------- Total
Pre-1940 1940-1959 1960-1977
----------------------------------------------------------------------------------------------------------------
Single Family Insurance..................................... 5,000 6,300 361,600 372,900
HUD-Owned Single Family Housing............................. 22,528 12,672 20,240 55,440
Multifamily Insured......................................... 1,875 1,875 11,250 15,000
Multifamily Housing w/ Project-Based Assistance............. 25,030 25,030 74,484 124,544
HUD-Owned Multifamily Housing............................... 991 3,364 18,592 22,947
Housing Rehab:
HOME.................................................... 2,090 2,578 243 ...........
HOPE III................................................ 129 156 15 ...........
CDBG.................................................... 6,082 9,193 884 ...........
Total Single Family Rehab <5k............................... 8,301="" 11,927="" 1,142="" 21,370="" home....................................................="" 8,832="" 10,680="" 1,026="" ...........="" hope="" iii................................................="" 542="" 655="" 63="" ...........="" cdbg....................................................="" 24,326="" 27,579="" 2,652="" ...........="" total="" single="" family="" rehab="" 5k-25k............................="" 33,700="" 38,914="" 3,741="" 76,355="" home....................................................="" 3,012="" 3,642="" 350="" ...........="" hope="" iii................................................="" 189="" 229="" 22="" ...........="" [[page="" 29192]]="" cdbg....................................................="" 7,602="" 9,193="" 884="" ...........="" total="" single="" family="" rehab="">25K.............................. 10,803 13,064 1,256 25,123
HOME.................................................... 2,960 2,247 274 ...........
Multifamily............................................. 20 20 360 ...........
CDBG.................................................... 4,100 4,983 2,459 ...........
Total Multifamily Rehab <5k................................. 7,080="" 7,250="" 3,093="" 17,423="" home....................................................="" 12,507="" 9,497="" 1,158="" ...........="" multifamily.............................................="" 80="" 80="" 1,440="" ...........="" cdbg....................................................="" 12,300="" 14,950="" 7,376="" ...........="" total="" multifamily="" rehab="" 5k-25k..............................="" 24,887="" 24,527="" 9,974="" 59,388="" home....................................................="" 4,265="" 3,238="" 395="" ...........="" multifamily.............................................="" 10="" 10="" 180="" ...........="" cdbg....................................................="" 4,101="" 4,983="" 2,459="" ...........="" total="" multifamily="" rehab="">25K................................ 8,376 8,231 3,034 19,641
Total Single Family Acquisition Under CPD Program........... 1,190 1,585 2,318 ...........
Total Multifamily Acquisition Under CPD Program............. 1,998 1,514 2,591 ...........
Pre-1950 Single Family Acquisition Under CPD Program........ 1,190 793 0 1,983
Pre-1950 Multifamily Acquisition Under CPD Program.......... 1,998 757 0 2,755
Post-1949 Single Family Acquisition Under CPD Program....... 0 793 2,318 3,111
Post-1949 Multifamily Acquisition Under CPD Program......... 0 757 2,591 3,348
Public Housing.............................................. 13,330 208,839 222,169 444,338
Indian Housing.............................................. 259 4,050 4,308 8,617
Tenant-Based Rental Assistance:
HOME.................................................... 566 538 1,075 ...........
Section 8............................................... 109,862 87,889 145,017 ...........
---------------------------------------------------
Total............................................... 110,428 88,427 146,093 ...........
---------------------------------------------------
Pre-1950.................................................... 110,428 44,214 0 154,641
Post-1949................................................... 0 44,214 146,093 190,306
---------------------------------------------------
Total Number of Units............................... 275,775 457,569 885,885 1,619,228
----------------------------------------------------------------------------------------------------------------
Table 4.--Total Cost by Program
----------------------------------------------------------------------------------------------------------------
Program cost
-------------------------------------------------------
Subparts Subpart
Pre-1940 1940-1959 1960-1977 total
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing........................... 3,328,750 2,696,400 65,720,800 71,745,950
HUD-Owned Single Family Housing w/Appropriations........ 94,262,784 27,247,968 11,132,000 132,642,752
HUD-Owned Single Family Housing w/o Appropriations...... 14,772,736 5,296,896 3,476,220 23,545,852
Multifamily Insured Housing............................. 490,781 294,375 705,938 1,491,094
Multifamily Housing w/ Project-Based Assistance......... 12,076,224 6,186,665 11,993,394 30,256,283
HUD-Owned Multifamily Housing w/Appropriations.......... 1,563,699 2,686,490 2,472,736 6,722,925
HUD-Owned Multifamily Housing w/o Appropriations........ 254,439 511,328 1,073,688 1,839,455
Single Family Rehab <5k................................. 2,278,625="" 3,273,962="" 313,479="" 5,866,065="" single="" family="" rehab="" 5k-25k..............................="" 30,515,350="" 27,628,940="" 1,964,025="" 60,108,315="" single="" family="" rehab="">25K................................ 11,013,659 11,431,000 779,976 23,224,635
Multifamily Rehab <5k................................... 1,940,628="" 1,982,150="" 843,152="" 4,765,930="" multifamily="" rehab="" 5k-25k................................="" 10,176,294="" 5,685,359="" 1,367,435="" 17,229,088="" multifamily="" rehab="">25K.................................. 5,234,162 2,813,356 610,137 8,657,656
Pre-1950 Single Family CPD Program...................... 1,212,610 466,386 0 1,678,996
Pre-1950 Multifamily CPD Program........................ 1,022,976 214,231 0 1,237,207
Post-1949 Single Family CPD Program..................... 0 331,265 398,117 729,382
Post-1949 Multifamily CPD Program....................... 0 115,064 149,630 264,694
Public Housing.......................................... 5,971,840 44,419,949 28,115,487 78,507,276
Indian Housing.......................................... 257,350 1,932,053 1,261,382 3,450,785
Pre-1950 Single Family Tenant-Based Assistance.......... 45,010,344 10,407,861 0 55,418,205
Pre-1950 Multifamily Tenant-Based Assistance............ 33,923,399 7,507,455 0 41,430,854
Post-1949 Single Family Tenant-Based Assistance......... 0 7,392,500 10,036,576 17,429,075
Post-1949 Multifamily Tenant-Based Assistance........... 0 4,032,273 5,062,116 9,094,388
-------------------------------------------------------
Total Without Appropriations...................... 179,480,167 144,619,466 133,871,551 457,971,184
-------------------------------------------------------
Total With Appropriations......................... 260,279,474 168,745,700 142,926,379 571,951,554
-------------------------------------------------------
Average Cost per Unit Without Appropriations............ 651 316 151 283
Average Cost per Unit With Appropriations............... 944 369 161 353
----------------------------------------------------------------------------------------------------------------
[[Page 29193]]
Benefits Identification and Estimation Methodology. The methodology
used to estimate annual benefits for the proposed rule is based on the
following formula:
Regulatory Benefits=(unit benefit) x (unit benefit frequency) x (number
of affected units).
This analysis is based on extensive academic and government
research analyzing the risks of lead-poisoning and the benefits of
lead-based paint hazard reduction. The ``unit benefit'' estimates are
the average benefits per dwelling unit achieved by conducting hazard
reduction activities. ``Unit benefit frequencies'' are determined by
the occurrence frequencies of lead-based paint hazards (shown in Table
2), because benefits are realized by hazard reduction activities. The
``number of affected units'' is the annual number of HUD-owned or
assisted units affected by the proposed rule (shown in Table 3).
The benefits of preventing elevated blood lead levels in young
children have been monetized in published literature by Joel Schwartz
of Harvard's School of Public Health in ``The Societal Benefits of
Reducing Lead Exposure'' (1993), the Center for Disease Control (CDC)
in ``Strategic Plan for the Elimination of Childhood Lead Poisoning''
(1991), and most recently in EPA's draft ``Title IV, Sections 402 and
404 Regulatory Impact Analysis'' (1994). Each of these sources
identified the following types of monetized benefits that are directly
applicable to the analysis of the benefits from the proposed rule:
--Reductions in medical costs, including physician visits, laboratory
testing, chelation therapy, neuropsychological testing, and follow-up
testing;
--Reductions in special education costs; and
--Increased lifetime earnings associated with higher cognitive
abilities, such as increased intelligence and better academic
performance in schools.
Monetized health benefits are divided into two categories: (1)
Benefits achieved only for children with blood lead levels prevented
from rising above 25 ug/dL; and (2) benefits achieved regardless of
blood lead levels. The Schwartz, CDC, and EPA analyses included
reduction in medical costs and special education costs in the first
category, and increased lifetime earnings in the second. Non-
rehabilitation programs also realize the market value benefits of
housing quality improvements, as measured by the difference between the
full and incremental costs of paint repair and abatement.
The proposed rule is not expected to produce any significant
monetized benefits associated with reduced neonatal mortality. HUD's
review of data suggests that neonatal mortality may not be a
demonstrated or measurable risk at maternal blood levels below 10 ug/
dL. Data from CDC's Third National Health and Nutrition Examination
Survey (NHANES III) indicate that only 0.5 percent of reproductive-aged
females have blood lead levels above 10 ug/dL, which suggests that the
monetized benefit of avoided neonatal mortality may be just $0.23 per
year per housing unit abated. In addition, the small percentage of
reproductive-aged females with blood lead levels above 10 ug/dL may be
primarily attributable to lead risks unrelated to residential lead-
based paint hazards; CDC estimates that 94 percent of very high adult
elevated blood lead levels result from occupational exposure, although
some of these exposures will be controlled by the previous rule.
Non-Quantifiable Benefits. The following benefits of lead-based
paint hazard reduction have not been estimated in monetary terms:
--Improving children's stature, hearing, and vitamin D metabolism;
--Reducing juvenile delinquency and the burden on the educational
system;
--Avoiding the parental and family time, expenses, and emotional costs
involved in caring for poisoned children;
--Reducing personal injury claims and court cases; and
--Aesthetic improvements in housing quality.
At Risk Population. Based on the NHANES III prevalence data and the
neurotoxicological evidence, this analysis defines the principal at-
risk population for lifetime earnings to be the national population of
children aged one and two. Some studies suggest that children aged one
and two are also the principal at-risk population for special education
benefits, although older children will also experience significant
benefits.
Reductions in Medical Costs and Special Education Costs. The
estimates for reduced medical and special education costs are based on
the Schwartz and CDC estimates, adjusted for inflation to 1994 dollars
and to reflect NHANES III data on the current extent of childhood lead
poisoning above 25 g/dL. Reduced medical and special education
costs are estimated at $1,800 and $4,000 per child, respectively.
Increased Lifetime Earnings. The estimate for increased lifetime
earnings reflect EPA and CDC estimates, adjusted to reflect NHANES III
data on the blood lead levels in young children. The analysis adopts
the EPA estimate that a 1 year old infant loses $6,092 in lifetime
earnings (based on 1993 dollars) per lost IQ point. If a 7 percent
discount rate is used, a 1 year old infant loses $1,400 in lifetime
earnings per lost I.Q. point. This total represents the direct link
between IQ and the wage rate; the indirect effect of IQ on educational
attainment; and the indirect effect of lead exposure on labor force
participation. CDC and Schwartz estimate that 0.245 IQ points (standard
error +/-0.41) are lost, on average, for each one g/dL
increase in a 1 year old child's blood lead level. Thus, preventing a
one g/dL increase in a 1 year old child's blood lead level
saves $1,493 ($6,092 x 0.245) in lifetime earnings discounted at 3
percent, and saves $343 ($1,400 x 0.245) in lifetime earnings
discounted at 7 percent. The potential benefit of increased earnings
associated with blood lead reductions can be calculated by multiplying
the potential blood lead decline for such young children by the value
per unit of blood lead ($1,493 or $343 per one g/dL,
discounted at 3 or 7 percent, respectively). The potential blood lead
reduction can be calculated by multiplying the average mean blood lead
for children sensitive to cognitive losses by the total number of such
at-risk children.
First Year Monetized Benefits for Resident Children Aged One and
Two. Medical and special education benefits of avoiding lead poisoning
are $5,800 for each child aged one or two prevented from developing
elevated blood lead levels above 25 g/dL. Census data indicate
there are 7.5 million children aged one and two in the United States in
1990, and NHANES III data show that 0.6 percent of these children have
blood lead levels above 25 g/dL. Therefore, the potential
first year medical and special education benefits of avoiding blood
lead levels above 25 g/dL in all U.S. children aged one and
two are $261 million ($5,800 x 7.5 million x 0.006). Benefits from
increased earnings are $1,493 or $343 (depending on the discount rate
used) multiplied by the total blood lead decline for all 1 and 2 year
old children. NHANES III reported an average blood lead for 1 and 2
year olds of 4.1 g/dL. If, for example, average blood lead
could be reduced to 0.1 g/dL for all 7.5 million of these
children, then the potential benefit would be $44.8 billion
[[Page 29194]]
(4.0 x 7.5 million x $1,493) or $10.3 billion (4.0 x 7.5
million x $343) for all U.S. children. (Of course, the proposed
regulations would affect only children in housing receiving Federal
assistance and federally owned housing.) NHANES data suggest that lead-
based paint hazard reduction activities can realize only a portion of
this theoretical potential benefit of $44.8 billion or $10.3 billion,
because the average blood lead for children with little or no lead-
based paint hazard exposure (e.g., affluent children in newer housing)
is approximately 2 g/dL.
Unit Benefit of Lead Dust Hazard Reduction. American Housing Survey
data indicate that 70 percent of young children live in pre-1978 units,
or approximately 5.25 million children ages one and two. Based on the
National Survey of Lead-Based Paint in Housing, it is estimated that 20
percent of these children live in housing units with dust lead levels
on interior window sills of greater than 1,000 g/ft2 and
another 4 percent are living in units with dust lead levels of 500-999
g/ft2. The average blood lead levels in the study by the
University of Rochester School of Medicine and the National Center for
Lead-Safe Housing, ``The Relation of Lead-Contaminated House Dust and
Blood Levels Among Urban Children'' (1995), suggest that lead dust
reduction could lower the average blood lead level of children living
in the highest dust lead category (greater than 1,000 g/
ft2) by 5.47 g/dL, and the average blood lead level in
the category of 500-999 g/ft2 could be reduced by 2.47
g/dL. These data are combined with the present value of
lifetime earnings associated with each one g/dL in blood lead
($1,493 or $343) and the estimated percentage of pre-1978 housing units
failing the window dust standard to produce a monetized benefit of $516
or $118 per unit (using a 3 percent or 7 percent discount rate,
respectively) brought up to standard.
5.25 million x (0.2) x (5.47) x ($1,493)=$8.6 billion (using a three
percent discount rate)
5.25 million x (0.2) x (5.47) x ($343)=$1.97 billion (using a seven
percent discount rate)
5.25 million x (0.04) x (2.47) x ($1,493)= $0.8 billion (using a three
percent discount rate)
5.25 million x (0.04) x (2.47) x ($343)=$0.18 billion (using a seven
percent discount rate)
Monetized benefit of enforcing dust standard in all units=$9.4 billion
(using a 3 percent discount rate) and $2.5 billion (using a seven
percent discount rate).
24% of 75.8 million pre-1979 housing units failing window dust
standard=18.2 million units
Monetized benefit per unit brought up to standard=$516/unit using a 3
percent discount rate and $118/unit using a 7 percent discount rate.
Unit Benefit of Paint Repair. The RIA presents a summary of recent
studies of lead-based paint hazard reduction benefits, as measured by
reductions in childhood elevated blood lead levels. These studies are
presented to illustrate why the subsequent analysis of paint repair
distinguishes between the direct benefit of avoided paint chip
ingestion and the indirect benefit of reduced lead dust hazards
associated with interior deteriorated lead-based paint. This
distinction is essential to avoid double counting of benefits.
Although the frequency of children with high elevated blood lead
levels has declined, recent research indicates that paint chip
ingestion is still a significant factor in the prevalence of very high
blood lead levels in children. Analysis of data from abdominal
radiographs of children in St. Louis with high blood lead levels
indicates that approximately one-fourth of all childhood blood lead
levels above 25 g/dL may be attributable to paint chip
ingestion. Based on the same data, it is estimated that the average
blood lead level for all children above 25 g/dL due to paint
chip ingestion is approximately 40 g/dL above the Rochester
mean of 6.37 g/dL for those children living in units belonging
to the lowest dust lead category (under 249 g/ft \2\).
This analysis assumes that the estimated lifetime earnings benefit
of avoided paint chip ingestion does not double count the estimated
benefits for dust reduction because the Rochester study excluded
children with medical interventions for very high elevated blood lead
levels. Therefore, the Rochester data probably excluded children
recovering from paint chip ingestion. Conversely, this analysis assumes
that the Rochester data used in the unit benefit analysis for lead dust
removal also reflects benefits for the fraction of elevated blood lead
children under 25 g/dL that may be recovering from paint chip
ingestion, because the Rochester data showed a clear correlation
between deteriorated lead-based paint and lead dust levels.
Data on the number of 1 and 2 year olds in pre-1978 housing (5.25
million), the percentage of these children with very high elevated
blood lead levels due to paint chip ingestion (25 percent of 0.6
percent = 0.15 percent), the average blood lead decline for all
children above 25 g/dL achieved by repairing deteriorated
lead-based paint (40 g/dL), and the lifetime earnings benefit
achieved by each one g/dL decline in blood lead ($1,493 or
$343) combine to produce a $535 million or $123 million total benefit
of avoided paint chip ingestion. Combined with National Survey data
that indicates about 20 percent of the inventory has deteriorated lead-
based paint (15 million), the monetized benefit per unit in the first
year of lead-based paint repair is $36 or $12 per unit, using a 3
percent or 7 percent discount rate, respectively.
National Survey data indicates that approximately 78 percent of
units with deteriorated interior lead-based paint also fail the
standards for window sill and/ or floor dust lead. By contrast, only 30
percent of the units with no deteriorated interior lead-based paint
fail the dust standards. These data suggest that more than 60 percent
of the dust hazards in units with deteriorated interior lead-based
paint are attributable to that deteriorated lead-based paint.
The higher frequency of dust hazards in units with deteriorated
interior lead-based paint is at least partially explained by
correlation that does not reflect causation, because deteriorated lead-
based paint and dust and soil hazards are all disproportionately
concentrated in pre-1940 housing. However, National Survey data also
indicate that dust hazards are approximately twice as common in post-
1940 units with deteriorated lead-based paint as in post-1940 units
without deteriorated interior lead-based paint. Therefore, this
analysis assumes that area cleanup after paint repair realizes the same
benefits as unit cleanup in one-half of the units with deteriorated
lead-based paint.
Unit Benefit of Soil Hazard Reduction. The estimated unit benefit
of soil cover is based on the EPA-funded study by Ann Aschengrau et.
al., ``The Impact of Soil Lead Abatement on Urban Children's Blood Lead
Levels: Phase II Results from the Boston Lead-in-Soil Lead
Demonstration Project'' (1994), which tested the hypothesis that a
reduction of lead in soil accessible to children would result in a
decrease in blood lead levels. In this study, the mean blood lead level
of the children whose homes received soil hazard reduction plus paint
repair and dust removal declined by 2.5 g/dL more than a
comparison group whose homes just received dust removal and paint
repair. With eight percent of units failing the proposed soil standard,
the calculated total benefit of covering all soil that fails the
standard is $1.57
[[Page 29195]]
billion or $361 million, which is a $261 or $60 benefit per unit with
soil cover, using a 3 percent or 7 percent discount rate, respectively.
The proposed rule requires soil abatement when lead in bare soil
exceeds 5,000 g/g, but National Survey data indicate that only
3 percent of U.S. homes exhibit soil lead above this concentration. The
costs of abating soil lead hazards (i.e. removing/replacing the soil,
or providing permanent cover) will exceed the cost of interim control
soil cover, but benefits would also be realized over many more years.
The RIA estimates only the costs and benefits of soil cover for all
soil hazards above 2000 g/g, because the net effect of
incorporating soil abatement costs and benefits for the small
percentage of affected units is not expected to materially affect the
cost-benefit analysis.
Duration of Benefits. The unit benefit estimates derived for lead
dust and soil hazard reduction and paint repair are first year
benefits, almost entirely attributable to the present value of
increased lifetime earnings associated with higher IQs resulting from
the prevention of childhood lead poisoning among resident children ages
one and two. This present value represents only the first year benefit
because additional benefits will accrue to a new population of 1 year
olds each year, and to children older than 1 who move into or visit
units in the years after hazard reduction activities are performed.
Therefore, a critical issue in assigning total unit benefits to
specific hazard reduction activities is the expected duration of risk
reductions associated with those activities.
This analysis assumes that benefits from lead dust reduction
activities associated with interim controls are realized for 4 years.
In those cases where the proposed rule requires lead-based paint hazard
abatement, the analysis assumes that dust benefits are realized for 8
years. These estimates are based on studies by Farfel et. al. (1994)
and Clark (1995) that measured dust lead reaccumulation rates in
treated housing. Farfel studied lead dust levels in abated units over a
maximum 3.5 year period. From the data in the article, dust lead
reaccumulation rates on floors and interior window sills following
abatement were 11 g/ft\2\ per year and 36 g/ft\2\ per
year, respectively. Since the guidance level for floors and sills is
100 g/ft\2\ and 500 g/ft\2\ respectively, these data
suggest it would take approximately 8 years for dust lead to
reaccumulate to levels above the clearance standards following
abatement, assuming a linear increase (average dust lead levels at
clearance were 14 g/ft\2\ for floors, and 13 g/ft\2\
for sills in the Farfel study). Unpublished data from the Cincinnati
part of the EPA Three Cities Soil Abatement study by Clark generally
support this conclusion. In the Three Cities Study in Cincinnati, soil
was abated but no paint abatement or interim controls occurred. Lead
dust reaccumulation rates were 10-15 g/ft\2\ per year on
floors and 20-35 g/ft\2\ per year on sills, which is generally
consistent with Farfel's work. For the purposes of this regulatory
impact analysis, we have assumed that abatement will be twice as
effective as interim controls in controlling dust lead levels over
time. Paint repair benefits of avoided paint chip ingestion are
realized for 5 years because paint repair should provide approximately
5 years of protection against significant amounts of deteriorated lead-
based paint, as most paint will last at least 5 years. The annual unit
benefit for soil cover is assumed to provide 5 years of benefits,
because the proposed rule requires repair of any deteriorated exterior
lead-based paint whenever soil cover is required. This assumption
reflects National Survey data indicating a very high correlation
between exterior deteriorated lead-based paint and soil hazards.
At this point in the analysis, the first year benefits calculated
for resident 1 and 2 year olds also do not include any benefits for
infants under age one, or for children over age three. Furthermore,
these estimates do not include any benefits for other children who may
visit units where hazard reduction activities are performed, because
first year benefits were calculated only for children living in units
with lead-based paint hazards. The total monetized unit benefits of
lead-based paint hazard reduction activities and rough estimates for
additional benefits realized by children other than the 1 and 2 year
olds actually residing in targeted units is shown in both Tables 5A (3
percent discount rate) and 5B (7 percent discount rate). The first row
in each table shows the first year benefit for resident 1 and 2 year
olds for each type of lead-based paint hazard activity. The second row
shows the estimated additional first year benefits for resident
children ages 3 and older and for other children visiting the targeted
unit. This analysis assumes that the sum of these benefits is 50
percent of the benefits realized by 1 and 2 year olds. The third line
shows the second-year benefit for a new population of 1 year-olds,
discounted at 7 percent. The fourth line shows the estimated second-
year benefit for children visiting the unit and for new residents,
discounted at 7 percent. This analysis assumes that second-year
benefits for these other children are 20 percent of the benefit for the
new population of 1 year-olds in the targeted units. This percentage is
lower than the ``other benefit'' assumption for the first year, because
any new population of resident children over the age of one would be
limited to units with new residents (i.e., resulting from unit
turnover). The benefits for years 3 through 20 are calculated using the
same assumptions as applied to year 2, reflecting the anticipated
average duration of each unit benefit.
Total First-Year Benefit Estimation. The estimated total benefit of
first-year hazard evaluation and reduction activities is $1.54 billion
or $496.6 million, which is an average of $950 or $307 per unit using a
3 percent or a 7 percent discount rate, respectively, assuming no
appropriations for treatment of HUD-owned housing. The estimated
benefit with appropriations is $1.64 billion or $563.1 million, which
is an average of $1,014 or $348 per unit (using a 3 percent or a 7
percent discount rate, respectively). Total benefits by program are
presented in Tables 6A and 6B.
Net Benefit Estimation. Estimated net benefits reflect the
difference between costs and benefits associated with the first year of
hazard evaluation and reduction activities under the proposed rule.
These costs and benefits, however, include the present value of future
costs and benefits associated with first year hazard reduction
activities (e.g., reevaluation costs, lifetime earnings benefits, and
benefits associated with the second and subsequent years after hazard
reduction activities).
The first-year total net benefits are $1.08 billion or $38.6
million without appropriations for HUD-owned housing and $1.07 billion
or $8.8 million with appropriations. Tables 7A (3 percent discount
rate) and 7B (7 percent discount rate) present summaries of the
estimated incremental costs, benefits, and net benefits of the first-
year activities under the proposed rule, without appropriations for
HUD-owned housing. Tables 8A (3 percent discount rate) and 8B (7
percent discount rate) present incremental net benefit (cost) data by
program. Tables 9A (3 percent discount rate) and 9B (7 percent discount
rate) present estimated incremental benefit (cost) data per dwelling
unit by program.
Use of Cost-Benefit Analysis in Policy Development HUD has sought,
within the flexibility provided in the statute, to
[[Page 29196]]
maximize the benefits relative to the costs that will derive from the
proposed regulations. The cost-benefit analysis was useful in
estimating the net benefit that might accrue from alternative lead-
based paint policies.
An example of how this occurred is in the tenant-based rental
assistance programs (subpart O of Part 36). One policy option for these
programs was to apply the requirements under these programs to all
housing units, as was done in other subparts of the rule. An
alternative was to continue the current policy of limiting the
applicability of the requirements only to housing occupied by families
with young children. (This alternative was uniquely available in the
tenant-based assistance programs, because the composition of the
households receiving the rental assistance is known to the agencies
administering the program.) As shown in tables 5A and 5B, the cost-
benefit analysis indicates that limiting applicability to units
occupied by young children yields benefits per affected unit in the
tenant-based assistance programs that are over four times those in
other programs. Therefore the limitation on applicability was retained
in the proposed rule.
Another policy issue in the tenant-based assistance programs was
whether to require any testing for lead-based paint hazards or to
retain the current policy of not requiring dust testing and only
requiring treatment of deteriorated paint. Based on the cost-benefit
analysis, HUD concluded that the maximum net benefit of dust testing
would derive from composite testing of housing built prior to 1950
combined with a thorough cleanup of housing units that had lead-
contaminated dust. Therefore, that policy is being proposed.
Another example of use of cost-benefit analysis is found in the
project-based rental assistance programs. The Department is proposing
to give property owners in these programs the flexibility to gain some
of the efficiencies available from prioritizing hazard reduction
according to urgency. As explained above, under subpart I, part 36, HUD
is proposing that owners with properties found to have lead-based paint
hazards must prepare a hazard reduction plan that will include a
schedule of hazard reduction activities consistent with the findings
and recommendations of the risk assessment report. It is the
Department's intent that owners should use the hazard reduction plan to
schedule hazard reduction actions in order of priority, in accordance
with the specific conditions of each property. For example, units
occupied by young children could be treated immediately, and those not
occupied by children might be treated at turnover to take advantage of
the economies of working in vacant units. This will maintain benefits
while minimizing costs.
2. Sensitivity Analysis and Regulatory Alternatives
The estimate of benefits is very sensitive to certain assumptions:
(1) That blood lead levels have remained steady since phase I of NHANES
III, (2) that the estimated loss of IQ associated with increased blood
lead levels is correct, (3) that the amount of lifetime earnings lost
per IQ point lost is correct, and (4) that the blood lead to IQ
relationship holds at all blood lead levels. In addition, the RIA
assumes that market value benefits offset all paint repair and
abatement costs, except for incremental costs, and that lead hazard
education activities play a role in reducing the reaccumulation of lead
dust.
Table 5A.--Summary Table of Monetized Unit Benefits Discounting Increased Lifetime Earnings at 3 Percent
----------------------------------------------------------------------------------------------------------------
Paint
Source of benefits Unit dust Unit dust Paint hazard Soil cover
4 year 8 year repair abate-ment
----------------------------------------------------------------------------------------------------------------
1st Year, 1 and 2 year olds.................... $516 $516 $36 $36 $261
1st Year, other................................ 258 258 18 18 130
2nd Year, 1 year olds.......................... 241 241 17 17 122
2nd Year, other................................ 48 48 3 3 25
3rd and 4th Year, 1 year olds.................. 436 436 30 30 221
3rd and 4th Year, other........................ 87 87 6 6 43
5th Year, 1 year olds.......................... ........... 197 14 14 100
5th Year, other................................ ........... 39 3 3 20
Years 6-8, 1 year olds......................... ........... 517 ........... 36 ...........
Years 6-8, other............................... ........... 103 ........... 7 ...........
Years 9-20, 1 year olds........................ ........... ........... ........... 118 ...........
Years 9-20, other.............................. ........... ........... ........... 24 ...........
----------------------------------------------------------------
Total $.................................. 1,586 2,442 127 312 922
----------------------------------------------------------------
Tenant-Based Assistance........................ 8,882 ........... 711 ........... ...........
Public Housing................................. 2,165 ........... 173 ........... 1,258
Project Based Assistance....................... 2,062 ........... 165 ........... 1,199
Resident children aged 1 and 2................. 75% 78% 76% 80% (76%)
Other children................................. 25% 22% 24% 20% (24%)
----------------------------------------------------------------------------------------------------------------
Table 5B.--Summary Table of Monetized Unit Benefits Discounting Increased Lifetime Earnings at 7 Percent
----------------------------------------------------------------------------------------------------------------
Paint
Source of benefits Unit dust Unit dust Paint hazard Soil cover
4 year 8 year repair abatement
----------------------------------------------------------------------------------------------------------------
1st Year, 1 and 2 year olds.................... $118 $118 $12 $12 $60
1st Year, other................................ 59 59 6 6 30
2nd Year, 1 year olds.......................... 55 55 6 6 28
2nd Year, other................................ 11 11 1 1 6
[[Page 29197]]
3rd and 4th Year, 1 year olds.................. 100 100 10 10 51
3rd and 4th Year, other........................ 20 20 2 2 10
5th Year, 1 year olds.......................... ........... 45 5 5 23
5th Year, other................................ ........... 9 1 1 5
Years 6-8, 1 year olds......................... ........... 118 ........... 12 ...........
Years 6-8, other............................... ........... 24 ........... 2 ...........
Years 9-20, 1 year olds........................ ........... ........... ........... 30 ...........
Years 9-20, other.............................. ........... ........... ........... 6 ...........
----------------------------------------------------------------
Total $.................................. 363 559 43 93 213
----------------------------------------------------------------
Tenant-Based Assistance........................ 2,033 ........... 241 ........... ...........
Public Housing................................. 495 ........... 59 ........... 290
Project Based Assistance....................... 472 ........... 56 ........... 277
Resident children aged 1 and................... 275% 78% 76% 80% (76%)
Other children................................. 25% 22% 24% 20% (24%)
----------------------------------------------------------------------------------------------------------------
Table 6A.--Total Benefit by Program Discounting Increased Lifetime Earnings at 3 Percent
----------------------------------------------------------------------------------------------------------------
Program benefit
Subparts -----------------------------------------------------------------------
Pre-1940 1940-1959 1960-1977 Subpart total
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing........... $3,787,800 $2,757,132 $64,541,984 $71,086,916
HUD-Owned Single Family Housing w/
Appropriations......................... 102,093,292 24,126,981 0 126,220,273
HUD-Owned Single Family Housing w/o
Appropriations......................... 17,066,312 5,545,774 3,612,638 26,224,723
Multifamily Insured Housing............. 713,775 357,413 810,900 1,882,088
Multifamily Housing w/ Project-Based
Assistance............................. 43,062,864 15,971,142 26,584,785 85,618,791
HUD-Owned Multifamily Housing w/
Appropriations......................... 2,858,203 3,987,147 0 6,845,350
HUD-Owned Multifamily Housing w/o
Appropriations......................... 377,254 641,246 1,340,111 2,358,611
Single Family Rehab <5k................. 6,873,228="" 4,843,197="" 231,141="" 11,947,566="" single="" family="" rehab="" 5k-25k..............="" 55,770,130="" 28,692,070="" 1,310,173="" 85,772,374="" single="" family="" rehab="">25K................ 26,874,623 15,072,198 701,376 42,648,197
Multifamily Rehab <5k................... 9,828,314="" 5,022,945="" 1,071,446="" 15,922,706="" multifamily="" rehab="" 5k-25k................="" 40,743,005="" 17,897,352="" 3,455,093="" 62,095,451="" multifamily="" rehab="">25K.................. 20,688,050 9,433,549 1,682,687 31,804,286
Pre-1950 Single Family CPD Program...... 1,901,787 635,918 0 2,537,704
Pre-1950 Multifamily CPD Program........ 2,440,077 420,438 0 2,860,515
Post-1949 Single Family CPD Program..... 0 346,830 413,740 760,570
Post-1949 Multifamily CPD Program....... 0 144,299 186,759 331,059
Public Housing.......................... 24,015,461 139,541,709 83,064,546 246,621,716
Indian Housing.......................... 533,862 3,163,698 1,854,034 5,551,594
Pre-1950 Single Family Tenant-Based
Assistance............................. 278,527,893 49,598,721 0 328,126,614
Pre-1950 Multifamily Tenant-Based
Assistance............................. 387,403,895 66,915,563 0 454,319,457
Post-1949 Single Family Tenant-Based
Assistance............................. 0 13,469,912 17,765,470 31,235,382
Post-1949 Multifamily Tenant-Based
Assistance............................. 0 12,722,350 15,785,036 28,507,386
-----------------------------------------------------------------------
Total Without Appropriations........ 920,608,330 393,193,456 224,411,917 1,538,213,703
-----------------------------------------------------------------------
Total With Appropriations........... 1,008,116,258 415,120,564 219,459,168 1,642,695,991
-----------------------------------------------------------------------
Average Benefit per Unit Without
Appropriations......................... 3,338 859 253 950
Average Benefit per Unit With
Appropriations......................... 3,656 907 248 1,014
----------------------------------------------------------------------------------------------------------------
Table 6B.--Total Benefit by Program Discounting Increased Lifetime Earnings at 7 Percent
----------------------------------------------------------------------------------------------------------------
Program benefit
-------------------------------------------------------
Subparts Subpart
Pre-1940 1940-1959 1960-1977 total
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing........................... $3,113,800 $2,430,729 $57,385,920 $62,930,449
HUD-Owned Single Family Housing w/ Appropriations....... 69,733,622 17,064,115 0 86,797,737
HUD-Owned Single Family Housing w/o Appropriations...... 14,029,537 4,889,238 3,212,088 22,130,863
Multifamily Insured Housing............................. 483,075 269,719 616,613 1,369,406
Multifamily Housing w/ Project-Based Assistance......... 11,736,817 4,373,242 7,148,962 23,259,021
HUD-Owned Multifamily Housing w/ Appropriations......... 1,465,094 2,156,391 0 3,621,486
HUD-Owned Multifamily Housing w/o Appropriations........ 255,321 483,911 1,019,028 1,758,260
Single Family Rehab <5k................................. 1,677,217="" 1,183,278="" 56,403="" 2,916,898="" [[page="" 29198]]="" single="" family="" rehab="" 5k-25k..............................="" 13,289,595="" 6,851,977="" 313,421="" 20,454,993="" single="" family="" rehab="">25K................................ 6,386,193 3,585,807 167,023 10,139,023
Multifamily Rehab <5k................................... 2,342,206="" 1,196,105="" 255,142="" 3,793,452="" multifamily="" rehab="" 5k-25k................................="" 9,664,369="" 4,255,435="" 822,755="" 14,742,558="" multifamily="" rehab="">25K.................................. 4,901,049 2,238,009 399,547 7,538,605
Pre-1950 Single Family CPD Program...................... 970,029 371,936 0 1,341,965
Pre-1950 Multifamily CPD Program........................ 899,160 172,096 0 1,071,256
Post-1949 Single Family CPD Program..................... 0 305,770 367,867 673,637
Post-1949 Multifamily CPD Program....................... 0 108,894 142,013 250,907
Public Housing.......................................... 6,496,376 37,920,895 22,181,353 66,598,623
Indian Housing.......................................... 190,000 1,165,266 658,736 2,014,002
Pre-1950 Single Family Tenant-Based Assistance.......... 84,851,344 16,609,426 0 101,460,770
Pre-1950 Multifamily Tenant-Based Assistance............ 101,248,758 18,179,713 0 119,428,471
Post-1949 Single Family Tenant-Based Assistance......... 0 8,339,907 11,291,221 19,631,128
Post-1949 Multifamily Tenant-Based Assistance........... 0 5,775,435 7,309,608 13,085,042
-------------------------------------------------------
Total Without Appropriations............................ 262,534,846 120,706,786 113,347,699 496,589,331
-------------------------------------------------------
Total With Appropriations............................... 319,448,703 134,554,144 109,116,583 563,119,430
-------------------------------------------------------
Average Benefit per Unit Without Appropriations......... 952 264 128 307
Average Benefit per Unit With Appropriations............ 1,158 294 123 348
----------------------------------------------------------------------------------------------------------------
Table 7A.--Cost-Benefit Summary for First Year Activities Discounting
Increased Lifetime Earnings at 3 Percent
[Millions of dollars, without appropriations]
------------------------------------------------------------------------
------------------------------------------------------------------------
Hazard Evaluation Costs.................................... $98.4
Hazard Reduction Costs:
Paint repair........................................... 197.5
Friction/impact work................................... 56.8
Soil cover............................................. 3.2
Paint hazard abatement................................. 10.4
Dust cleanup........................................... 91.7
------------
Total First Year Costs............................... 458.0
============
Monetized Benefits:
Paint repair........................................... 77.4
Paint hazard abatement................................. 7.7
Soil cover............................................. 47.1
Dust cleanup........................................... 1,230.4
Paint Repair Market Value.............................. 175.6
------------
Total First Year Benefits............................ 1,538.2
============
Total First Year Net Benefits........................ 1,080.2
------------------------------------------------------------------------
Table 7B.--Cost-Benefit Summary for First Year Activities Discounting
Increased Lifetime Earnings at 7 Percent
[Millions of dollars, without appropriations]
------------------------------------------------------------------------
------------------------------------------------------------------------
Hazard Evaluation Costs.................................... $98.4
Hazard Reduction Costs:
Paint repair........................................... 197.5
Friction/impact work................................... 56.8
Soil cover............................................. 3.2
Paint hazard abatement................................. 10.4
Dust cleanup........................................... 91.7
------------
Total First Year Costs............................... 458.0
============
Monetized Benefits:
Paint repair........................................... 26.2
Paint hazard abatement................................. 2.3
Soil cover............................................. 10.9
Dust cleanup........................................... 281.6
[[Page 29199]]
Paint Repair Market Value.............................. 175.6
------------
Total First Year Benefits............................ 496.6
============
Total First Year Net Benefits........................ 38.6
------------------------------------------------------------------------
Table 8A.--Net Benefit (Cost) by Program Discounting Increased Lifetime Earnings at 3 Percent
----------------------------------------------------------------------------------------------------------------
Net program benefit (cost)
Subparts (Tables) -------------------------------------------------------- Subpart total
Pre-1940 1940-1959 1960-1977
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing........ $459,050 $60,732 ($1,178,816) ($659,034)
HUD-Owned Single Family Housing w/
Appropriations...................... 7,830,508 ($3,120,987) ($11,132,000) ($6,422,479)
HUD-Owned Single Family Housing w/o
Appropriations...................... 2,293,576 248,878 136,418 2,678,871
Multifamily Insured Housing.......... 222,994 63,038 104,963 390,994
Multifamily Housing w/ Project-Based
Assistance.......................... 30,986,639 9,784,477 14,591,391 55,362,508
HUD-Owned Multifamily Housing w/
Appropriations...................... 1,294,504 1,300,657 ($2,472,736) 122,425
HUD-Owned Multifamily Housing w/o
Appropriations...................... 122,815 129,918 266,423 519,156
Single Family Rehab <5k.............. 4,594,604="" 1,569,235="" ($82,338)="" 6,081,501="" single="" family="" rehab="" 5k-25k...........="" 25,254,780="" 1,063,130="" ($653,852)="" 25,664,059="" single="" family="" rehab="">25K............. 15,860,965 3,641,198 ($78,600) 19,423,562
Multifamily Rehab <5k................ 7,887,686="" 3,040,795="" 228,294="" 11,156,776="" multifamily="" rehab="" 5k-25k.............="" 30,566,711="" 12,211,993="" 2,087,658="" 44,866,362="" multifamily="" rehab="">25K............... 15,453,888 6,620,193 1,072,549 23,146,630
Pre-1950 Single Family CPD Program... 689,177 169,532 0 858,708
Pre-1950 Multifamily CPD Program..... 1,417,101 206,207 0 1,623,308
Post-1949 Single Family CPD Program.. 0 15,565 15,623 31,188
Post-1949 Multifamily CPD Program.... 0 29,235 37,129 66,364
Public Housing....................... 18,043,621 95,121,760 54,949,059 168,114,440
Indian Housing....................... 276,512 1,231,646 592,652 2,100,809
Pre-1950 Single Family Tenant-Based
Assistance.......................... 233,517,549 39,190,859 0 272,708,409
Pre-1950 Multifamily Tenant-Based
Assistance.......................... 353,480,495 59,408,108 0 412,888,603
Post-1949 Single Family Tenant-Based
Assistance.......................... 0 6,077,413 7,728,894 13,806,307
Post-1949 Multifamily Tenant-Based
Assistance.......................... 0 8,690,078 10,722,920 19,412,998
Total Without Appropriations......... 741,128,163 248,573,990 90,540,366 1,080,242,519
Total With Appropriations............ 747,836,784 246,374,864 76,532,789 1,070,744,437
----------------------------------------------------------------------------------------------------------------
Table 8B.--Net Benefit (Cost) by Program Discounting Increased Lifetime Earnings at 7 Percent
----------------------------------------------------------------------------------------------------------------
Net program benefit (cost)
Subparts (tables) --------------------------------------------------------- Subpart total
Pre-1940 1940-1959 1960-1977
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing....... ($214,950) ($265,671) ($8,334,880) ($8,815,501)
HUD-Owned Single Family Housing w/
Appropriations..................... (24,529,162) (10,183,853) (11,132,000) (45,845,015)
HUD-Owned Single Family Housing w/o
Appropriations..................... (743,199) (407,658) (264,132) (1,414,989)
Multifamily Insured Housing......... (7,706) (24,656) (89,325) (121,688)
Multifamily Housing w/ Project-Based
Assistance......................... (339,407) (1,813,424) (4,844,431) (6,997,262)
HUD-Owned Multifamily Housing w/
Appropriations..................... (98,605) (530,099) (2,472,736) (3,101,440)
HUD-Owned Multifamily Housing w/o
Appropriations..................... 882 (27,417) (54,660) (81,195)
Single Family Rehab <5k............. (601,407)="" (2,090,684)="" (257,076)="" (2,949,167)="" single="" family="" rehab="" 5k-25k..........="" (17,225,755)="" (20,776,963)="" (1,650,604)="" (39,653,322)="" single="" family="" rehab="">25K............ (4,627,465) (7,845,193) (612,953) (13,085,611)
Multifamily Rehab <5k............... 401,578="" (786,045)="" (588,010)="" (972,478)="" multifamily="" rehab="" 5k-25k............="" (511,926)="" (1,429,924)="" (544,680)="" (2,486,530)="" multifamily="" rehab="">25K.............. (333,114) (575,347) (210,590) (1,119,050)
Pre-1950 Single Family CPD Program.. (242,582) (94,450) 0 (337,032)
Pre-1950 Multifamily CPD Program.... (123,816) (42,135) 0 (165,951)
Post-1949 Single Family CPD Program. 0 (25,495) (30,250) (55,745)
Post-1949 Multifamily CPD Program... 0 (6,170) (7,618) (13,787)
Public Housing...................... 524,536 (6,499,054) (5,934,134) (11,908,653)
Indian Housing...................... (67,350) (766,787) (602,646) (1,436,782)
Pre-1950 Single Family Tenant-Based
Assistance......................... 39,841,001 6,201,564 0 46,042,565
Pre-1950 Multifamily Tenant-Based
Assistance......................... 67,325,359 10,672,258 0 77,997,617
Post-1949 Single Family Tenant-Based
Assistance......................... 0 947,407 1,254,645 2,202,052
Post-1949 Multifamily Tenant-Based
Assistance......................... 0 1,743,162 2,247,492 3,990,654
---------------------------------------------------------------------------
Total Without Appropriations.. 83,054,679 (23,912,680) (20,523,853) 38,618,147
===========================================================================
[[Page 29200]]
Total With Appropriations..... 59,169,229 (34,191,557) (33,809,796) (8,832,124)
----------------------------------------------------------------------------------------------------------------
Table 9A.--Net Benefit (Cost) per Unit by Program Discounting Increased Lifetime Earnings at 3 Percent
----------------------------------------------------------------------------------------------------------------
Net program Benefit
--------------------------- (cost)
Subparts -------------- Subpart
Pre-1940 1940-1959 1960-1977
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing............................ $92 $10 ($3) ($2)
HUD-Owned Single Family Housing w/ Appropriations........ 348 (246) (550) (116)
HUD-Owned Single Family Housing w/o Appropriations....... 102 20 7 48
Multifamily Insured Housing.............................. 119 34 9 26
Multifamily Housing w/ Project-Based Assistance.......... 1,238 391 196 445
HUD-Owned Multifamily Housing w/ Appropriations.......... 1,306 387 (133) 5
HUD-Owned Multifamily Housing w/o Appropriations......... 124 39 14 23
Single Family Rehab <5k.................................. 554="" 132="" (72)="" 285="" single="" family="" rehab="" 5k-25k...............................="" 749="" 27="" (175)="" 336="" single="" family="" rehab="">25K................................. 1,468 279 (63) 1,356
Multifamily Rehab <5k.................................... 1,114="" 419="" 74="" 640="" multifamily="" rehab="" 5k-25k.................................="" 1,228="" 498="" 209="" 755="" multifamily="" rehab="">25K................................... 1,845 804 354 1,178
Pre-1950 Single Family CPD Program....................... 579 214 0 433
Pre-1950 Multifamily CPD Program......................... 709 272 0 589
Post-1949 Single Family CPD Program...................... 0 20 7 10
Post-1949 Multifamily CPD Program........................ 0 39 14 20
Public Housing........................................... 1,354 455 247 378
Indian Housing........................................... 1,070 304 138 244
Pre-1950 Single Family Tenant-Based Assistance........... 5,287 2,216 0 4,409
Pre-1950 Multifamily Tenant-Based Assistance............. 5,335 2,239 0 4,450
Post-1949 Single Family Tenant-Based Assistance.......... 0 344 132 181
Post-1949 Multifamily Tenant-Based Assistance............ 0 328 122 170
----------------------------------------------------------------------------------------------------------------
Table 9B.--Net Benefit (Cost) per Unit by Program Discounting Increased Lifetime Earnings at 7 Percent
----------------------------------------------------------------------------------------------------------------
Net Program Benefit
---------------------------- (Cost)
Subparts -------------- Subpart
Pre-1940 1940-1959 1960-1977
----------------------------------------------------------------------------------------------------------------
Single Family Insured Housing........................... ($43) ($42) ($23) ($24)
HUD-Owned Single Family Housing w/ Appropriations....... (1,089) (804) (550) (827)
HUD-Owned Single Family Housing w/o Appropriations...... (33) (32) (13) (26)
Multifamily Insured Housing............................. (4) (13) (8) (8)
Multifamily Housing w/ Project-Based Assistance......... (14) (72) (65) (56)
HUD-Owned Multifamily Housing w/ Appropriations......... (100) (158) (133) (135)
HUD-Owned Multifamily Housing w/o Appropriations........ 1 (8) (3) (4)
Single Family Rehab <5k................................. (72)="" (175)="" (225)="" (138)="" single="" family="" rehab="" 5k-25k..............................="" (511)="" (534)="" (441)="" (519)="" single="" family="" rehab="">25K................................ (428) (601) (488) (914)
Multifamily Rehab <5k................................... 57="" (108)="" (190)="" (56)="" multifamily="" rehab="" 5k-25k................................="" (21)="" (58)="" (55)="" (42)="" multifamily="" rehab="">25K.................................. (40) (70) (69) (57)
Pre-1950 Single Family CPD Program...................... (204) (119) 0 (170)
Pre-1950 Multifamily CPD Program........................ (62) (56) 0 (60)
Post-1949 Single Family CPD Program..................... 0 (32) (13) (18)
Post-1949 Multifamily CPD Program....................... 0 (8) (3) (4)
Public Housing.......................................... 39 (31) (27) (27)
Indian Housing.......................................... (261) (189) (140) (167)
Pre-1950 Single Family Tenant-Based Assistance.......... 902 351 0 744
Pre-1950 Multifamily Tenant-Based Assistance............ 1,016 402 0 841
Post-1949 Single Family Tenant-Based Assistance......... 0 54 21 29
Post-1949 Multifamily Tenant-Based Assistance........... 0 66 26 35
----------------------------------------------------------------------------------------------------------------
Steady Blood Lead Levels. Phase I of the National Health and
Nutrition Evaluation Survey (NHANES) III conducted from October 1988 to
October 1991 revealed that average blood lead levels for children under
six
[[Page 29201]]
had declined since NHANES II. If blood lead levels have continued to
decline since Phase I, the benefit estimate would decline. The change
in net benefits of the proposed rule associated with any continuing
decline in blood lead levels is impossible to quantify because the
magnitude of any such decline cannot be quantified from available data,
and because there are no systematic data on any associated potential
declines in lead-based paint hazards (which would reduce the costs of
the proposed rule). It is probable that any continuing decline in blood
lead levels would reflect a continuing decline in lead-based paint
hazards (e.g. soil and dust lead levels). Therefore, hazard reduction
costs could decline to an extent roughly proportionate to any decline
in hazard reduction benefits.
Sensitivity of Lifetime Earnings and IQ to Blood Estimates. The
monetized benefits of preventing elevated blood lead levels are almost
entirely due to the benefits from increased lifetime earnings
associated with the higher cognitive abilities of children who are
prevented from being lead poisoned. Increased lifetime earnings are
quantified by multiplying the amount of lifetime earnings lost per IQ
point (EPA's $6,092 estimate using a 3 percent discount rate, or $1,400
using a 7 percent discount rate) by the average amount of IQ points
lost per each one ug/dL increase in blood (Schwartz' .245 point
estimate). Therefore, the analysis assumes that preventing a one ug/dL
increase in a 1 year old child's blood lead level saves $1,493 or $343
in lifetime earnings. However, this benefit is sensitive both to the
dollar estimate of lifetime earnings per IQ point lost (and that
estimate's chosen discount rate) and to the estimate of IQ points lost
per one ug/dL increase in blood lead levels. Similarly, more recent
meta-analysis estimated .257 IQ points lost per one ug/dL increase in
blood lead levels; estimated IQ losses were found to be .185 point per
one ug/dL increase in populations that were socially disadvantaged and
.289 point per one ug/dL increase in populations that were not
disadvantaged. Substituting the .185 figure for the .245 figure would
reduce the total benefits derived from increased lifetime earnings by
27 percent (because 0.185 is 73 percent of 0.245) to a net benefit of
$712 million (using a 3 percent discount rate).
Threshold for Blood Lead to IQ Relationship. Another uncertainty
about the blood lead to IQ relationship is whether it applies at
relatively low and high blood lead levels. The available evidence does
not indicate any apparent threshold but the data on children under five
ug/dL is extremely limited. If the lifetime earnings benefit is not
realized at these lower levels, then the benefits of the proposed rule
would be substantially reduced. For example, the Regulatory Impact
Analysis estimates the annual benefit of increased lifetime earnings
from preventing blood levels above 5 ug/dL for children ages one and
two to equal $19.5 billion, or an average of $198 per unit brought up
to the proposed standard for lead dust (using a 3 percent discount
rate).
Market Value for Paint Repair and Abatement. The market value of
paint repair accounts for about 11 percent, or $175 million of the
$1,080 million in net benefits associated with first year hazard
reduction activities under the proposed rule. The first year costs of
paint repair are shown to be approximately 43 percent of total first-
year costs. If the cost-benefit analysis reflected no benefits for the
market value of paint repair associated with first year activities,
then the proposed rule would still yield net benefits of $905 million
for first year activities.
The proposed rule only requires lead-based paint hazard abatement
for rehabilitation exceeding $25,000 per unit, and for HUD-owned
housing with sufficient appropriations. Therefore, assigning no market
value to non-rehabilitation programs does not affect the lead-based
paint hazard abatement costs of the proposed rule without
appropriations. Applying the full cost of abatement for HUD-owned
housing with appropriations without any market value for associated
rehabilitation work would result in net costs for the HUD-Owned Single
Family Housing and HUD-owned and Mortgagee-in-Possession Multifamily
Housing Subparts of the proposed rule. The market value of
rehabilitation work associated with abatement, however, would certainly
increase the expected market value of HUD-owned property. Therefore,
the full costs of abatement should be substantially offset by the
increased resale value of these properties.
Hazard Education. The Regulatory Impact Analysis notes that many
hazard reduction studies reflect some amount of lead hazard education
for residents and that it has been difficult to separate the benefits
of hazard reduction from the benefits of hazard education. The
estimated duration of dust removal benefits assumes that the baseline
includes increased resident education about lead hazards, which reduces
the reaccumulation of lead dust.
3. Economic Impacts
The economic impact analysis of which entities will bear the cost
of the proposed lead-based paint hazard evaluation and reduction
requirements for HUD programs is discussed below.
Single Family Insurance. Those purchasing and/or selling a home
with Federal Housing Administration mortgage insurance will bear the
cost of lead-based paint hazard evaluation and reduction requirements
for single family insurance programs. The visual inspection required by
the proposed rule will be conducted during appraisals, which are
typically paid for by the purchaser. Repair of deteriorated surfaces
and cleanup of the worksite area are performed before endorsement or
financed through an escrow account, which implies that the FHA could
pass on the cost of repair and cleanup to the buyer through raising the
price of insurance. Higher insurance prices resulting from the
additional costs of lead-based paint hazard evaluation and control
activities could lessen the competitiveness of FHA insurance compared
to other mortgage insurers.
The average cost of the proposed rule for single family insurance
is $192 per unit, but 85 percent of this full cost could be recovered
by the market value of paint repair. Compared to the cost of mortgage
insurance and closing costs for a mortgage, the additional cost of the
proposed rule is negligible. The distribution of costs for lead-based
paint hazard evaluation and reduction, however, creates more
significant economic impacts for units that incur the highest possible
combination of costs. This combination of unit costs is incurred by
units that require both interior paint repair at a cost of $500 and
exterior paint repair at a cost of $100. These units would also require
cleanup of the affected work area at a cost of $75, plus $10 for the
initial visual evaluation, for a total cost of $1,585.
Project-Based and Tenant-Based Rental Assistance. For multifamily
project-based assistance programs, the proposed rule allows the owner
to request a rent increase from HUD to pay for the costs of
implementing an interim control plan. For tenant-based assistance
programs, the proposed rule states that the owner is responsible for
paint repair and cleanup, but it may be possible for owners to raise
the contract rent to finance the cost of lead-based paint hazard
evaluation and reduction. Although this option is not explicitly stated
in the proposed rule, it is reasonable to expect that property owners
will try to recover regulatory
[[Page 29202]]
costs, and income-based limits on tenant-paid rents under this program
suggest that HUD would pay the cost of any rent increase. For the
purpose of this analysis, it is assumed that HUD will directly or
indirectly pay the incremental costs of the proposed rule for tenant-
based assistance programs and for project-based assistance programs.
If HUD is directly or indirectly paying the costs of the proposed
rule for rental assistance programs, then the economic impact for these
programs can be measured in terms of the number of households or units
that HUD would be unable to assist each year with the funds that are
expended on lead-based paint hazard evaluation and reduction. The total
annual incremental cost of the proposed rule for tenant- and project-
based assistance programs is $77 million. The annual per-household cost
of tenant-based assistance is less than $7,000 per unit. Therefore,
with funds expended on lead-based paint hazard evaluation and reduction
for project- and tenant-based assistance programs, HUD could provide
rental assistance to more than 11,000 families. This represents less
than 1 percent of the total number of households presently receiving
tenant-based rental assistance.
Rehabilitation Programs. In the case of rehabilitation programs,
there is no explicit acknowledgement in the proposed rule that HUD will
finance the additional costs of lead-based paint hazard evaluation and
reduction, which suggests that the recipients of federal funds are
responsible for funding these activities. These recipients, however,
are receiving HUD assistance for rehabilitation. Therefore, it is
reasonable to assume that the costs of the proposed rule will reduce
the amount of rehabilitation work that the recipients can finance. In
this case, the economic impact of the proposed rule can be measured by
determining the number of rehabilitation projects that would not be
funded due to the recipients' inability to finance these additional
costs. Dividing the total cost of the proposed rule for rehabilitation
programs ($120 million) by an average cost of $15,000 per unit for
rehabilitation work indicates that the proposed rule could cause a loss
of financing for more than 8,000 units in need of rehabilitation each
year.
Public and Indian Housing. The economic impact of the proposed rule
on Public and Indian housing programs can be measured by the amount by
which annual maintenance and repair services would be reduced for each
unit. Based on the average incremental cost per unit of the proposed
rule, public housing programs would have to reduce annual maintenance
and repair expenses by $149 per unit. Indian programs would have to
reduce such expenditures by $292 per unit.
4. Environmental Justice
President Clinton issued Executive Order 12898 and an accompanying
Presidential memorandum to focus attention on the environmental and
human health conditions in minority and low-income communities with the
goal of achieving environmental justice. As part of HUD's efforts to
incorporate environmental justice into its policies and programs, the
Department has examined the impacts of the proposed rule on low-income
populations and minority populations. The proposed rule promotes
environmental justice in the following ways:
--Conducting lead-based paint evaluation and control activities in
federally assisted housing will most significantly benefit low-income
and minority populations because low-income and minority families are
more likely to have children with elevated blood lead levels, and
because low-income families are more likely to live in federally
assisted housing.
--By offering a more consistent and streamlined approach to addressing
lead-based paint hazards, the proposed rule increases the effectiveness
of lead-based paint hazard evaluation and control to the benefit of
low-income and minority populations.
--In developing the proposed rule, the Department provided ample
opportunity for participation by the public, including low-income
housing advocates and tenant representatives.
--Provisions within the proposed rule ensure that low-income and
minority populations will have access to public information about lead-
based paint hazards. First, the proposed rule requires that the lead
hazard information pamphlet developed by the EPA be distributed to
existing owner-occupants and tenants residing in dwelling units covered
by the proposed rule. Forthcoming Section 1018 requirements to be
established in 24 CFR part 38 will require new purchasers and new
tenants of target housing to receive the EPA lead hazard information
pamphlet. Second, the proposed rule requires that occupants of
federally owned housing and federally assisted rental housing be
provided written notice of risk assessments, paint inspections, or
hazard reduction activities required by this regulation and undertaken
at the property.
VIII. Other Matters
Public Reporting Burden
(a) In accordance with 5 CFR 1320.5(a)(1)(iv), the Department is
setting forth the following concerning the proposed collection of
information:
(1) Title of the information collection proposal: Requirements for
Notification, Evaluation and Reduction of Lead-Based Paint Hazards in
Federally Owned Residential Property and Housing Receiving Federal
Assistance (FR-3482)
(2) Summary of the collection of information: EPA Lead Hazard
Information Pamphlet, Notice of Evaluation/Hazard Reduction; Hazard
Reduction Plan; Elevated Blood-Level (EBL) Reporting. These collections
of information are new requirements and are necessary for HUD to comply
with the Residential Lead-Based Paint Hazard Reduction Act of 1992. In
the case of the EPA pamphlet, notice of hazard evaluation and reduction
activities, and EBL reporting, the new requirements replace existing
information collection requirements found in HUD's program regulations
pertaining to lead-based paint. As with the other requirements of the
proposed rule, HUD has tried to simplify the information collection
requirements and minimize the burden to respondents.
(3) Description of the need for the information and its proposed
use:
EPA Lead Hazard Information Pamphlet: Statutory requirement, to
provide information on health risks associated with exposure to lead
hazards and recommended methods for evaluating and reducing such
hazards, and related information.
Notice of Evaluation/Hazard Reduction: Statutory requirement, to
provide notice to tenants describing the nature, scope and results of
any risk assessment, paint inspection, or hazard reduction activities
undertaken.
Hazard Reduction Plan: Risk assessments are statutorily required in
housing receiving project-based assistance, according to a schedule set
forth in the proposed rule. If a risk assessment report identifies
lead-based paint hazards, and the property owner requests a rent
adjustment increase from HUD to pay for hazard reduction activities, a
hazard reduction plan must be submitted for approval by HUD as part of
the standard rent adjustment increase request.
Elevated Blood Level (EBL) Reporting: The rule requires evaluation
and reduction of lead-based paint hazards when an EBL child is
identified in the covered properties in which HUD maintains a
continuing relationship with the recipients of Federal housing
[[Page 29203]]
assistance, or that is owned and to be sold by HUD and in which an EBL
child resides. The reporting requirement states that the name and
address of an EBL child shall be reported to the State or local health
agency to ensure coordination between housing and health agencies. The
reporting requirements currently exists in some HUD programs (e.g.
Section 8 tenant-based rental assistance).
(4) Description of the likely respondents, including the estimated
number of likely respondents, and proposed frequency of response to the
collection of information: Residential property owners and public
housing agencies receiving Federal housing assistance; Federal
grantees; any Federal agency that sells a pre-1978 residential property
that is owned by the agency. Additional information on the numbers of
respondents and frequency of responses is given in the next paragraph.
(5) Estimate of the total reporting and recordkeeping burden that
will result from the collection of information:
Requirements for Notification, Evaluation, and Reduction of Lead-Based Paint Hazards in Federally Owned
Residential Property and Housing Receiving Federal Assistance (FR-3482)
[Information collection requirement: Annual cost and hour burden]
----------------------------------------------------------------------------------------------------------------
Proposed
section of Number of Frequency Hour
Type of collection 24 CFR respondents of response burden Annual cost
affected
----------------------------------------------------------------------------------------------------------------
Lead Pamphlet............................... 36.62 1,096,367 1 36,546 $825,934.00
36.144
36.162
36.230
36.256
36.274
36.294
Notice of Evaluation/Hazard Reduction....... 36.64 1,024,050 1 47,569 567,689.00
36.164
36.232
36.276
Hazard Reduction Plan....................... 36.168 360 1 2,340 32,292.00
EBL Reporting............................... 36.170 2,005 1 13,783 173,851.00
36.188
36.208
36.284
36.302
-------------------------------------------------------------------
Total................................. ........... 2,122,782 1 100,238 1,599,766.00
----------------------------------------------------------------------------------------------------------------
(b) In accordance with 5 CFR 1320.8(d)(1), the Department is
soliciting comments from members of the public and affected agencies
concerning the proposed collection of information to:
(1) Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the proposed collection of information;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond; including through the use of appropriate automated
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
Interested persons are invited to submit comments regarding the
information collection requirements in this proposal. Under the
provisions of 5 CFR part 1320, OMB is required to make a decision
concerning this collection of information between 30 and 60 days after
today's publication date. Therefore, a comment on the information
collection requirements is best assured of having its full effect if
OMB receives the comment within 30 days of today's publication. This
time frame does not affect the deadline for comments to the agency on
the proposed rule, however. Comments must refer to the proposal by name
and docket number (FR-3482) and must be sent to:
Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and
Budget, New Executive Office Building, Washington, DC 20503
and
Reports Liaison Officer, Office of the Lead-Based Paint Abatement and
Poisoning Prevention, Department of Housing & Urban Development, 451--
7th Street, SW., Room B-133, Washington, DC 20410.
The information collection requirements contained in this rule have
been submitted to the Office of Management and Budget under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The Department
has determined that the following provisions contain information
collection requirements.
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule before publication and
by approving it certifies that this proposed rule does not have a
significant economic impact on a substantial number of small entities,
other than those impacts specifically required to be applied
universally by the statute. The requirements of the proposed rule are
applicable only to a limited and specifically defined portion of the
nation's housing stock. To the extent that the requirements affect
small entities, the impact is generally discussed in the economic
analysis that accompanies the proposed rule.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
was made in accordance with HUD regulations in 24 CFR part 50 that
implement section 102(2)(C) of the
[[Page 29204]]
National Environmental Policy Act of 1969 (42 U.S.C. 4332). This
Finding is available for public inspection between 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.
Executive Order 12866
Consistent with Executive Order 12866 and President Clinton's
memorandum of March 4, 1995, to all Federal Departments and Agencies on
the subject of Regulatory Reinvention, the Department is reviewing all
of its regulations to determine which regulations can be eliminated,
streamlined, or consolidated with other regulations. As part of this
review, at the final rule stage this proposed rule will undergo
revisions in accordance with the President's regulatory reform
initiatives. In addition to comments on the substance of this proposed
rule, the Department welcomes comments on how this proposed rule may be
made more understandable and less burdensome in its final form.
OMB reviewed this proposed rule under Executive Order 12866,
Regulatory Planning and Review. Any changes made to the proposed rule
as a result of that review are identified in the docket file, which is
available for public inspection at 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 20410-0500.
The Regulatory Impact Analysis performed on this proposed rule is also
available for public inspection between 7:30 a.m. and 5:30 p.m.
weekdays at the Office of the Rules Docket Clerk.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under Section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this proposed rule will not have substantial direct
effects on States or their political subdivisions, or the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
As a result, the proposed rule is not subject to review under the
Order. Promulgation of this proposed rule expands coverage of the
applicable regulatory requirements pursuant to statutory direction.
Executive Order 12606, the Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this proposed rule does
not have potential for significant impact on family formation,
maintenance, and general well-being, and, thus, is not subject to
review under the order. No significant change in existing HUD policies
or programs will result from promulgation of this proposed rule, as
those policies and programs relate to family concerns.
List of Subjects
24 CFR Part 36
Grant programs--housing and community development, Lead poisoning,
Mortgage insurance, Rent subsidies, Reporting and recordkeeping
requirements.
24 CFR Part 37
Grant programs--housing and community development, Lead poisoning,
Mortgage insurance, Rent subsidies, Reporting and recordkeeping
requirements.
Accordingly, title 24 of the Code of Federal Regulations, is
proposed to be amended by removing part 35, consisting of subparts A
through G, and by adding part 36, consisting of subparts A through O,
and by adding part 37, consisting of subparts A through J, as follows:
PART 35--LEAD-BASED PAINT POISONING PREVENTION IN CERTAIN
RESIDENTIAL STRUCTURES [REMOVED]
PART 36--EVALUATION AND REDUCTION OF LEAD-BASED PAINT HAZARDS IN
FEDERALLY OWNED RESIDENTIAL PROPERTY AND HOUSING RECEIVING FEDERAL
ASSISTANCE
Subpart A--General Requirements
Sec.
36.1 Purpose and applicability.
36.2 Exemptions.
36.3 Assumption of lead-based paint or lead-based paint hazards or
both.
36.4 Delay of evaluation, paint repair and hazard reduction
activities on exterior surfaces.
36.6 Prohibition against the use of paint containing lead in
federally owned housing and housing receiving Federal assistance.
36.8 Prohibited methods of paint removal.
36.10 Compliance with Federal laws and authorities.
36.12 Compliance with local codes and regulations.
36.13 Minimum requirements.
36.14 Waivers.
36.15 Noncompliance with the requirements of this part 36 and part
37.
36.16 Definitions.
Subpart B--State Procedures
36.20 Purpose and applicability.
36.22 General eligibility criteria.
36.24 General procedures.
36.26 Specific procedures.
Subpart C--Disposition of Residential Property Owned by Federal
Agencies Other Than HUD
36.40 Purpose and applicability.
36.42 Exemption.
36.44 Disposition of residential property constructed before 1960.
36.46 Disposition of residential property constructed after 1959
and before 1978.
36.48 Other required practices.
Subpart D--Project-Based Assistance Provided by a Federal Agency Other
Than HUD
36.60 Purpose and applicability.
36.62 Lead hazard information pamphlet.
36.64 Notice of evaluation, paint repair and hazard reduction
activities.
36.66 Risk assessments.
36.68 Hazard reduction.
36.70 EBL child.
36.72 Other required practices.
Subpart E--Single Family Insured Property
36.80 Purpose and applicability.
36.82 Exemptions.
36.84 Lead hazard information pamphlet.
36.86 Visual evaluation of painted surfaces.
36.88 Paint repair and cleanup.
Subpart F--Disposition of HUD-Owned Single Family Property (With
Sufficient Appropriations)
36.100 Purpose and applicability.
36.102 Exemptions.
36.104 Disposition of single family property constructed before
1960.
36.106 Disposition of single family property constructed after 1959
and before 1978.
36.108 Other required practices.
Subpart G--Disposition of HUD-Owned Single Family Property (Without
Sufficient Appropriations)
36.120 Purpose and applicability.
36.122 Exemptions.
36.124 Visual evaluation of painted surfaces.
36.126 Paint repair and cleanup.
36.128 Monitoring.
Subpart H--Multifamily Insured Property
36.140 Purpose and applicability.
36.142 Exemptions.
36.144 Lead hazard information pamphlet.
36.146 Visual evaluation of painted surfaces.
36.148 Paint repair and cleanup.
Subpart I--Project-Based Assistance
36.160 Purpose and applicability.
36.162 Lead hazard information pamphlet.
36.164 Notice of evaluation, paint repair and hazard reduction
activities.
36.166 Risk assessments.
36.168 Hazard reduction plan.
36.169 Hazard reduction.
36.170 EBL child.
36.172 Other required practices.
[[Page 29205]]
Subpart J--Disposition of HUD-Owned and Mortgagee-in-Possession
Multifamily Property (With Sufficient Appropriations)
36.180 Purpose and applicability.
36.182 Exemption.
36.184 Disposition of multifamily property constructed before 1960.
36.186 Disposition of multifamily property constructed after 1959
and before 1978.
36.188 EBL child.
36.190 Other required practices.
Subpart K--Disposition of HUD-Owned and Mortgagee-in-Possession
Multifamily Property (Without Sufficient Appropriations)
36.200 Purpose and applicability.
36.202 Exemptions.
36.204 Visual evaluation of painted surfaces.
36.206 Paint repair and cleanup.
36.208 EBL child.
36.210 Monitoring.
Subpart L--Rehabilitation
36.220 Purpose and applicability.
36.222 Definitions.
36.224 Exemptions.
36.226 Rehabilitation costs.
36.228 Calculating rehabilitation costs for the Flexible Subsidy-
CILP program.
36.229 Determining evaluation, paint repair and hazard reduction
requirements.
36.230 Lead hazard information pamphlet.
36.232 Notice of evaluation, paint repair and hazard reduction
activities.
36.234 Residential property receiving an average of less than
$5,000 per unit in Federal rehabilitation assistance.
36.236 Residential property receiving an average of $5,000 or more
and $25,000 or less per unit in Federal rehabilitation assistance.
36.238 Residential property receiving an average of more than
$25,000 per unit in Federal rehabilitation assistance.
36.240 Other required practices.
Subpart M--Community Planning and Development (CPD) Non-Rehabilitation
Programs
36.250 Purpose and applicability.
36.252 Definitions--subrecipient.
36.254 Exemption--limited paint inspection.
36.256 Lead hazard information pamphlet.
36.258 Residential property constructed before 1950.
36.260 Residential property constructed after 1949 and before 1978.
36.262 Tenant-based rental assistance.
Subpart N--Public and Indian Housing Programs
36.270 Purpose and applicability.
36.272 Definitions--Public or Indian housing project.
36.274 Lead hazard information pamphlet.
36.276 Notices of evaluation and reduction of lead-based paint and
lead-based paint hazards.
36.278 Evaluation.
36.280 Interim controls.
36.282 Abatement.
36.284 EBL child.
36.286 Other required practices.
Subpart O--Tenant-Based Rental Assistance
36.290 Purpose and applicability.
36.292 Exemptions.
36.294 Lead hazard information pamphlet.
36.296 Residential property constructed before 1950; initial
inspections.
36.298 Residential property constructed before 1950; periodic
inspections.
36.300 Residential property constructed after 1949 and before 1978;
initial and periodic inspections.
36.302 EBL child.
Authority: 42 U.S.C. 3535(d) and 4822.
Subpart A--General Requirements
Sec. 36.1 Purpose and applicability.
(a) The requirements of this part are promulgated to implement the
Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4822 et seq.).
(b) Subpart A of this part applies to all federally owned
residential properties and housing receiving Federal assistance that is
covered under this part.
Sec. 36.2 Exemptions.
(a) This part does not apply to the following:
(1) A residential property for which construction was completed on
or after January 1, 1978;
(2) A single room occupancy (SRO) dwelling unit;
(3) Housing for the elderly or a residential property designated
exclusively for persons with disabilities, except that if a child who
is less than 6 years of age resides or is expected to reside (the
Department interprets this phrase to include a pregnant woman), the
relevant requirements of this part shall apply.
(b) A residential property undergoing emergency repairs in response
to a natural disaster is exempt from the relevant evaluation and
reduction requirements of this part that apply to the property.
(c) The requirements of visual evaluation, paint repair and cleanup
do not apply for a dwelling unit if documentation is provided that a
paint inspection has been completed in accordance with part 37, subpart
C, of this subtitle and indicates the absence of lead-based paint in
the dwelling unit (i.e. lead-free). Results of additional test(s) by a
certified paint inspector may be used to confirm or refute a prior
finding.
Sec. 36.3 Assumption of lead-based paint or lead-based paint hazards
or both.
In subparts where interim controls or abatement are required, the
presence of lead-based paint or lead-based paint hazards or both may be
assumed throughout the residential property. If lead-based paint or
lead-based paint hazards or both are assumed, paint inspection or risk
assessment is not required. The requirements for interim controls or
abatement or both must then be conducted in accordance with part 37,
subparts E and F, of this subtitle. Interim controls and abatement are
completed when cleanup and clearance are achieved in accordance with
part 37, subparts H and I, of this subtitle.
Sec. 36.4 Delay of evaluation, paint repair and hazard reduction
activities on exterior surfaces.
Performance of an evaluation, paint repair, lead-based paint hazard
reduction, or abatement of lead-based paint on an exterior painted
surface as required under this part may be delayed for a reasonable
time when weather conditions are unsuitable for conventional
construction activities.
Sec. 36.6 Prohibition against the use of paint containing lead in
federally owned housing and housing receiving Federal assistance.
The use of paint containing more than 0.06 percent by weight of
lead on any interior or exterior surface in federally owned housing or
housing receiving Federal assistance is prohibited. Where appropriate,
each Federal agency shall include the prohibition in contracts, grants,
cooperative agreements, insurance agreements, guaranty agreements,
trust agreements, or other similar documents.
Sec. 36.8 Prohibited methods of paint removal.
The following methods of paint removal may not be used to remove
lead-based paint:
(a) Open flame burning or torching;
(b) Machine sanding or grinding without a high-efficiency
particulate air (HEPA) exhaust control;
(c) Uncontained hydroblasting or high pressure wash;
(d) Abrasive blasting or sandblasting without HEPA exhaust control;
(e) Heat guns operating above 1100 degrees Fahrenheit;
(f) Chemical paint strippers containing methylene chloride; or
(g) Dry scraping or dry sanding, except scraping in conjunction
with heat guns or around electrical outlets or when treating defective
paint spots totalling no more than 2 square feet in any one interior
room or space, or totalling no more than 20 square feet on exterior
surfaces.
Sec. 36.10 Compliance with Federal laws and authorities.
All lead-based paint activities required in this part must be
performed
[[Page 29206]]
in accordance with applicable Federal laws and authorities. Further,
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.) and other environmental laws and authorities (See,
e.g., laws and authorities listed in Sec. 50.4 of this subtitle).
Sec. 36.12 Compliance with local codes and regulations.
Nothing in this part is intended to relieve an owner or tenant of
federally owned housing or housing receiving Federal assistance from
any responsibility for compliance with State or local laws, ordinances,
codes, or regulations governing lead-based paint. With respect to
housing receiving Federal assistance, HUD does not assume any
responsibility for ensuring compliance with such State or local
requirements.
Sec. 36.13 Minimum requirements.
This part sets out the Department's minimum requirements for the
evaluation and reduction of lead-based paint and lead-based paint
hazards in federally owned housing and housing receiving Federal
assistance. Nothing in this part is intended to preclude an owner or
tenant of such housing from conducting additional evaluation and
reduction measures. For example, if the Department requires interim
controls, an owner or tenant may choose to implement abatement.
Sec. 36.14 Waivers.
(a) On a case-by-case basis and upon determination of good cause,
the Secretary may, subject to statutory limitations, waive any
provision of this part.
(b) In the case of jurisdictions which banned the sale or use of
lead-based paint prior to 1978, the Secretary may designate an earlier
date for certain provisions of this part.
Sec. 36.15 Noncompliance with the requirements of this part and part
37.
A property owner who informs a potential purchaser or tenant of
possible lead-based paint hazards in the dwelling unit is not relieved
of the requirements to evaluate and reduce lead-based paint or lead-
based paint hazards in accordance with this part and part 37 of this
subtitle. Further, noncompliance with any of these requirements by a
recipient of Federal housing assistance (e.g., owner, grantee or public
or Indian housing agency) may result in sanctions by the Department
corresponding to the type of assistance provided, or enforcement of
these requirements by any other means authorized by law.
Sec. 36.16 Definitions.
Abatement means any set of measures designed to permanently
eliminate lead-based paint or lead-based paint hazards. For the
purposes of this definition, permanent means at least 20 years
effective life. Abatement includes:
(1) The removal of lead-based paint and lead-contaminated dust, 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 lead-contaminated soil; and
(2) All preparation, cleanup, disposal, and post abatement
clearance testing activities associated with such measures.
Accessible (chewable) surface means an interior or exterior surface
painted with lead-based paint that a young child can mouth or chew.
Act means the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C.
4822 et seq.
Bare soil means soil not covered by grass, sod, or other live
ground covers, or by wood chips, gravel, artificial turf, or similar
covering. Bare soil includes sand.
Certified contractor means a risk assessor, inspector, or abatement
supervisor who has been certified in accordance with 40 CFR 745.226.
Clearance examination means an activity conducted and a laboratory
analysis by a clearance examiner after completion of lead-based paint
hazard reduction activities to determine that the hazard controls are
complete and that levels of lead in settled dust or bare soil or both
meet the standards established in part 37, subpart I, of this subtitle.
The clearance process includes a visual evaluation and collection of
environmental samples.
Common area means a portion of a residential property (except in a
condominium project) generally accessible to occupants of all dwelling
units. 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 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 sampling means the collection of more than one sample of
the same medium (e.g. dust, soil or paint) for analysis as one sample.
Containment means the physical measures taken to ensure that dust
and debris created or released during paint repair or lead-based paint
hazard reduction are not spread, blown or tracked from inside to
outside of the worksite.
Department means the United States Department of Housing and Urban
Development (HUD).
Deteriorated paint means any interior or exterior applied paint
that is peeling, chipping, chalking or cracking or any paint located on
an interior or exterior surface or fixture that is otherwise damaged or
separated from the substrate.
Dry sanding means sanding by machine or by hand without moisture.
Dwelling unit means a house or an apartment, occupied or intended
for occupancy, including attached structures such as balconies, porches
or stoops.
Elevated blood lead level (EBL) (requiring the evaluation of lead
hazards) means an excessive absorption of lead that is a confirmed
concentration of lead in whole blood of 20 ug/dl (micrograms of lead
per deciliter of whole blood) for a single venous test or of 15-19 ug/
dl in two consecutive venous tests taken 3 to 4 months apart.
Emergency repair means a single-purpose activity that must be
performed immediately to maintain the integrity and habitability of a
residential property. Examples include repair of roof damage or of
utility or mechanical equipment.
Encapsulation means the application of any 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.
Enclosure means the use of rigid, durable construction materials
that are mechanically fastened to the substrate in order to act as a
barrier between the lead-based paint and the environment.
Evaluation means visual evaluation, risk assessment, paint
inspection, or a combination of risk assessment and paint inspection to
determine the presence of deteriorated paint, a lead-based paint hazard
or lead-based paint.
Federal agency means the United States or any executive department,
independent establishment, administrative agency and instrumentality of
the United States,
[[Page 29207]]
including a corporation in which all or a substantial amount of the
stock is beneficially owned by the United States or by any of the
entities mentioned above. The term ``Federal agency'' includes, but is
not limited to, HUD, Rural Housing and Community Development Service
(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.
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.
Grantee means any State or local government, Indian tribe or
insular area that has been designated by HUD to administer Federal
housing assistance under a program covered by part 36, subparts B, L or
M, except the HOME program or the Flexible Subsidy-Capital Improvement
Loan Program (CILP).
Hazard reduction means measures designed to reduce or eliminate
human exposure to lead-based paint hazards through interim controls and
abatement.
HEPA vacuum means 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.
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 at the time of initial occupancy.
Housing receiving Federal assistance means housing 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.
HUD-owned property means residential property to which HUD acquired
title, or any federally owned residential property for which HUD has
disposition responsibility.
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 tribes means any Indian tribe, band, group or nation,
including Alaskan Indians, Aleuts and Eskimos, and any Alaskan Native
Village of the United States that is considered an eligible recipient
under Title I of the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450), or was considered an eligible recipient under the
State and Local Fiscal Assistance Act of 1972 (31 U.S.C. 1221) before
repeal of that Act. Eligible recipients are determined by the Bureau of
Indian Affairs.
Inspection (See 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 repairs, maintenance, painting,
temporary containment, specialized cleaning, ongoing monitoring of
lead-based paint hazards or potential hazards, and the establishment
and operation of management and resident education programs.
Interior window sill means the portion of the horizontal window
ledge that usually protrudes into the interior of the room, adjacent to
the window sash when closed; often called 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), or another level
that may be established by the Secretary.
Lead-based paint hazard means any condition that causes exposure to
lead from lead-contaminated dust, lead-contaminated soil, or lead-
contaminated paint that is deteriorated or present in accessible
surfaces, friction surfaces, or impact surfaces, and that would result
in adverse human health effects.
Lead-contaminated dust means surface dust that contains an amount
of lead exceeding the following levels, which may pose a threat of
adverse health effects in pregnant women or children of less than 6
years of age:
(1) Hard floors--100 ug/ft \2\;
(2) Carpeted floors--100 ug/ft \2\; and
(3) Interior window sills--500 ug/ft \2\.
Lead-contaminated soil means bare soil on residential property that
contains lead exceeding the following levels, which may pose a threat
of adverse health effects in pregnant women or children of less than 6
years of age:
(1) Children's play area--400 ug/g (micrograms per gram); and
(2) All other areas--2,000 ug/g.
Limited paint inspection means a paint inspection of only
deteriorated paint surfaces or those painted surfaces likely to be
disturbed or replaced during rehabilitation activities.
Multifamily property means a residence containing dwelling units
for five or more families.
Occupant means a person who inhabits a dwelling unit.
Owner means a person, firm, corporation, guardian, conservator,
receiver, trustee, executor, or other judicial officer who, 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 inspection means a surface-by-surface investigation of all
intact and nonintact interior and exterior painted surfaces for lead-
based paint using an approved x-ray fluorescence analyzer, atomic
absorption spectroscopy, or comparable approved sampling or testing
technique, and includes the provision of a report explaining the
results of the investigation.
Paint removal means a method of abatement that entails removing
lead-based paint from surfaces.
Painted surface to be disturbed means paint that is 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, paint chips, or exposed surfaces.
Participating jurisdiction means any State or local government,
Indian tribe or insular area that has been designated by HUD to
administer a HOME program.
Project-based assistance means Federal assistance that is tied to a
residential property with a specific location and remains with that
particular location throughout the term of the assistance.
Protective covering means a durable material, such as polyethylene
or its equivalent, which protects from lead-contaminated dust, debris
or abrasion.
Random sample means a sample drawn from a population (e.g. housing
units in a multifamily property) so that each member of the population
has an equal chance to be drawn.
Recognized laboratory means any environmental laboratory recognized
by EPA under the National Lead Laboratory Accreditation Program as
being capable of performing an analysis for lead compounds in paint,
soil or dust.
Rehabilitation means the improvement of an existing structure
through alterations, incidental additions or enhancements.
Rehabilitation includes repairs necessary to correct the
[[Page 29208]]
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
such as windows, doors, and trim, and the installation of new
components free of lead-based paint.
Residential property means a dwelling unit, common areas and any
surrounding land belonging to an owner and accessible to occupants.
Risk assessment means an on-site investigation to determine and
report the existence, nature, severity, and location of lead-based
paint hazards in residential properties, including:
(1) Information gathered on the age and history of the housing and
occupancy by children under age 6;
(2) Visual assessment;
(3) Limited wipe sampling or other environmental sampling
techniques;
(4) Identification of hazard reduction options; and
(5) Provision of a report explaining the results of the
investigation.
Room equivalent means an identifiable part of a residence such as a
room, a house exterior side or area, a hallway, stairway or a
playground, identified for the purpose of conducting a paint
inspection.
Secretary means the Secretary of the U.S. Department of Housing and
Urban Development.
Similar dwelling units means dwelling units that were built at the
same time, have a common maintenance and management history, have a
common painting history, and are of similar construction.
Single family property means a residence containing dwelling units
for one to four families.
Single room occupancy (SRO) means a 0-bedroom dwelling unit for
occupancy by a single individual which may contain food preparation or
sanitary facilities or both, and is located within a residential
property.
Single-surface sampling means the collection of one sample from
each sampling location or individual component with the intention that
each sample will be analyzed individually.
Substrate means the material directly beneath the painted surface
out of which the components are constructed, including wood, drywall,
plaster, concrete, brick or metal.
Targeted sample means a sample of dwelling units selected from a
multifamily property using information supplied by the owner. The units
are selected to have the greatest probability of having lead-based
paint hazards.
Tenant means the individual named on a lease or rental agreement to
lease or rent a dwelling unit.
Visual evaluation means to look at interior and exterior painted
surfaces for signs of deterioration.
Wet sanding or scraping means a process of removing loose paint in
which both the surface to be scraped or sanded and the scraping or
sanding tool are kept wet with water to minimize the dispersal of paint
chips and airborne dust.
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 window sill is sometimes referred to as
the window stool.
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. The window trough is sometimes
referred to as the window well.
Window well (See Window trough)
Worksite means an interior or exterior area where paint repair or a
lead-based paint hazard reduction activity takes place. There may be
more than one worksite in a dwelling unit or at a residential property.
XRF reading means the measurement of lead levels in paint with a
portable X-ray fluorescence (XRF) instrument. The measurement is always
in mg/cm\2\ (milligrams per square centimeter).
Subpart B--State Procedures
Sec. 36.20 Purpose and applicability.
The purpose of this subpart B is to allow States, Indian tribes and
insular areas to establish alternative procedures to those required
under subparts L and M of this part, to eliminate as far as practicable
lead-based paint hazards in housing receiving Federal assistance, or
operating a Federal housing assistance program, established by the
Secretary. A State, Indian tribe or insular area shall meet the general
eligibility criteria set out in Sec. 36.22.
Sec. 36.22 General eligibility criteria.
(a) A State, Indian tribe or insular area shall have in place a
certification program for individuals and firms engaged in lead-based
paint activities that is approved by EPA pursuant to sections 402 and
404 of Title IV of the Toxic Substances Control Act (TSCA), (15 U.S.C.
2682 and 2684).
(b) A State, Indian tribe or insular area shall have in place
written evaluation and hazard reduction procedures that have been
approved by the Secretary prior to implementation of authority under
this subpart, and when such procedures are substantially altered by
such entity.
(c) A unit of general local government located in a State that has
HUD-approved alternate procedures in accordance with this section may
adopt those State procedures for all or part of the programs assisted
under subparts L and M of this part.
Sec. 36.24 General procedures.
Alternative lead-based paint hazard evaluation and reduction
procedures developed by a State, Indian tribe or insular area must
include the following minimum requirements:
(a) Lead hazard information pamphlet. The State, Indian tribe or
insular area shall ensure that the lead hazard information pamphlet
developed by the Environmental Protection Agency, pursuant to section
406(a) of the Toxic Substances Control Act, 15 U.S.C. 2686 is provided
to the tenant, owner-occupant or purchaser of housing receiving Federal
assistance under this subpart.
(b) Notice of evaluation, paint repair and hazard reduction
activities. In cases where evaluation, paint repair or hazard reduction
activities are undertaken, each owner shall provide a notice to
tenants. The notice must include:
(1) A summary of the nature, scope and results of the evaluation,
paint repair or hazard reduction activities;
(2) Information on how to obtain access to the actual evaluation
report; and
(3) Available information on the location of any remaining lead-
based paint on a surface-by-surface basis after conducting hazard
reduction.
(c) Occupant protection. Occupants may not be permitted to enter
the interior worksite during lead-based paint hazard reduction
activities or paint repair. Occupant re-entry into the worksite is
permitted only after the hazard reduction work is completed and
clearance has been achieved, or after paint repair and cleanup are
completed.
Sec. 36.26 Specific procedures.
The specific procedures for reducing lead-based paint hazards in
housing covered under this subpart B are to be developed at the
discretion of the State, Indian tribe or insular area, but must include
the following minimum requirements:
(a) Clearance standards. When clearance is required under paragraph
(b) of this section the following standards shall apply:
[[Page 29209]]
(1) Dust testing. Levels of lead in dust wipe samples may not
exceed the following standards:
(i) Hard floors--100 ug/ft\2\;
(ii) Carpeted floors--100 ug/ft\2\;
(iii) Interior window sills--500 ug/ft\2\.
(2) Soil testing. Lead levels in samples of bare soil may not
exceed the following standards:
(i) Children's play area--400 ug/g (micrograms per gram);
(ii) All other areas--2,000 ug/g.
(3) Visual evaluation. A visual evaluation of all painted surfaces
in order to identify deteriorated paint.
(b) Rehabilitation. A grantee or participating jurisdiction
receiving HUD rehabilitation funds for a residential property
constructed before 1978 shall require the following:
(1) Housing receiving an average of $25,000 or less per unit in HUD
funds for rehabilitation. (i) A paint inspection of each surface to be
disturbed by rehabilitation or which may be replaced during
rehabilitation.
(ii) A risk assessment in the units receiving HUD rehabilitation
assistance and in associated common areas and exterior surfaces.
(iii) Hazard reduction activities to reduce identified lead-based
paint hazards must be conducted under the supervision of a certified
abatement contractor. Hazard reduction is completed when the clearance
standards set out in paragraph (a) of this section are achieved.
(iv) States may adopt less stringent procedures for addressing
potential lead-based paint hazards when the average amount of HUD funds
for rehabilitation is less than $5,000 per unit.
(2) Housing receiving an average of more than $25,000 per unit in
HUD funds for rehabilitation. (i) A paint inspection of each surface to
be disturbed by rehabilitation or which may be replaced during
rehabilitation.
(ii) A risk assessment in the units receiving HUD rehabilitation
assistance and in associated common areas and exterior surfaces.
(iii) Abatement of identified lead-based paint hazards must be
conducted in the course of rehabilitation. Abatement is completed when
the clearance standards set out in paragraph (a) of this section are
achieved.
(c) CPD non-rehabilitation programs. A grantee or participating
jurisdiction receiving Federal assistance under a HUD program described
in subpart M of this part for a residential property constructed before
1978 shall require the following:
(1) Housing constructed before 1950. (i) Dust testing;
(ii) Paint repair of deteriorated paint and cleanup of the
worksite; and
(iii) Cleanup of surfaces with high levels of leaded dust, if dust
samples above the standards set out in paragraph (a)(1) of this section
are identified.
(2) Housing constructed after 1949 and before 1978. Paint repair of
deteriorated paint and cleanup of the worksite.
Subpart C--Disposition of Residential Property Owned by Federal
Agencies Other Than HUD
Sec. 36.40 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
disposition (i.e. sale) of a residential property that is owned by a
Federal agency other than HUD.
Sec. 36.42 Exemption.
In the absence of appropriations sufficient to cover the costs of
Secs. 36.44, 36.46 and 36.48 these requirements shall not apply to the
Federal agency.
Sec. 36.44 Disposition of residential property constructed before
1960.
(a) Hazard evaluation. The Federal agency shall conduct a risk
assessment and a paint inspection in accordance with part 37, subparts
B and C, of this subtitle. Hazard evaluation must be completed
according to a schedule determined by the Federal agency.
(b) Abatement of lead-based paint hazards. The Federal agency shall
conduct abatement of all identified lead-based paint hazards in
accordance with part 37, subpart F, of this subtitle. Abatement is
completed when cleanup and clearance are achieved in accordance with
part 37, subparts H and I, of this subtitle. In the case of a sale to a
non-owner occupant purchaser, abatement may be made a condition of sale
with sufficient funds escrowed.
Sec. 36.46 Disposition of residential property constructed after 1959
and before 1978.
(a) Exemption. The Secretary may waive the paint inspection and
risk assessment requirements of this section if documentation is
provided to the Secretary by the Federal agency that a risk assessment,
performed by a certified risk assessor, shows the absence of lead-based
paint hazards, or that a paint inspection, performed by a certified
paint inspector, shows an absence of lead-based paint. In addition, the
Secretary may waive the requirements of this section if a clearance
test conducted by a certified risk assessor has indicated the absence
of lead-based paint hazards.
(b) Hazard evaluation. The Federal agency shall conduct a risk
assessment and a paint inspection in accordance with part 37, subparts
B and C, of this subtitle. Hazard evaluation must be completed
according to a schedule determined by the Federal agency.
Sec. 36.48 Other required practices.
(a) Required practices. If abatement of lead-based paint hazards is
conducted the following practices are required:
(1) Occupant protection and worksite preparation in accordance with
part 37, subpart G, of this subtitle.
(2) Monitoring must be conducted in accordance with part 37,
subpart J, of this subtitle if the Federal agency retains ownership of
the property for more than 1 year.
(b) Control of new hazards. If monitoring identifies new lead-based
paint hazards, the Federal agency shall conduct additional abatement
activities in accordance with part 37, subpart F, of this subtitle.
Abatement is completed when cleanup and clearance are achieved in
accordance with part 37, subparts H and I, of this subtitle.
Subpart D--Project-Based Assistance Provided by a Federal Agency
Other Than HUD
Sec. 36.60 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 in project-based
assistance under a program administered by a Federal agency other than
HUD.
Sec. 36.62 Lead hazard information pamphlet.
If a tenant resides in a residential property prior to the
effective date of the regulation implementing section 1018 of Title X
of the Housing and Community Development Act of 1992 (42 U.S.C. 4852d),
and the property receives Federal project-based assistance, the owner
shall provide the lead hazard information pamphlet developed by the
Environmental Protection Agency, pursuant to section 406(a) of the
Toxic Substances Control Act, 15 U.S.C. 2686 to the tenant.
Sec. 36.64 Notice of evaluation, paint repair and hazard reduction
activities.
In cases where evaluation, paint repair or hazard reduction is
undertaken, each owner shall provide a notice to tenants. The notice
must include:
(a) A summary of the nature, scope and results of the evaluation,
paint repair or hazard reduction activities;
[[Page 29210]]
(b) Information on how to obtain access to the actual evaluation
report; and
(c) Available information on the location of any remaining lead-
based paint on a surface-by-surface basis after conducting hazard
reduction.
Sec. 36.66 Risk assessments.
Each owner shall complete a risk assessment in accordance with part
37, subpart B, of this subtitle. Each risk assessment must be completed
no later than the schedule established by the Federal agency.
Sec. 36.68 Hazard reduction.
Each owner shall conduct hazard reduction activities consistent
with the findings of the risk assessment report. Hazard reduction must
be conducted in accordance with part 37, subparts E and F, of this
subtitle and is completed when cleanup and clearance are achieved in
accordance with part 37, subparts H and I, of this subtitle.
Sec. 36.70 EBL child.
Risk assessment and hazard reduction. If a child less than 6 years
of age living in a federally assisted dwelling unit has an EBL, the
owner shall immediately conduct a risk assessment in accordance with
part 37, subpart B, of this subtitle. Reduction of identified lead-
based paint hazards must be conducted in accordance with part 37,
subparts E and F, of this subtitle and is completed when cleanup and
clearance are achieved in accordance with part 37, subparts H and I, of
this subtitle. The Federal agency shall establish a schedule for
completing risk assessments and hazard reduction when an EBL child is
identified.
Sec. 36.72 Other required practices.
(a) Required practices. If hazard reduction is conducted, the
following practices are required:
(1) Occupant protection and worksite preparation in accordance with
part 37, subpart G, of this subtitle.
(2) Monitoring in accordance with part 37, subpart J, of this
subtitle.
(b) Control of new hazards. If monitoring identifies new lead-based
paint hazards, each owner shall conduct additional hazard reduction
activities in accordance with part 37, subparts E and F, of this
subtitle. Hazard reduction is completed when cleanup and clearance are
achieved in accordance with part 37, subparts H and I, of this
subtitle.
Subpart E--Single Family Insured Property
Sec. 36.80 Purpose and applicability.
The purpose of this subpart E is to establish procedures to
eliminate as far as practicable lead-based paint hazards in a single
family property that receives mortgage insurance under a program
administered by the Secretary, including One- to Four-Family Home
Mortgage Insurance (12 U.S.C. 1709 (b) and (i)); Rehabilitation
Mortgage Insurance (12 U.S.C. 1709(k)); Homeownership Assistance for
Low- and Moderate-Income Families (12 U.S.C. 1715(d)(2)); Homes for
Service Members (12 U.S.C. 1715m); Housing in Declining Neighborhoods
(12 U.S.C. 1715n(e)); Condominium Housing (12 U.S.C. 1715y); Special
Credit Risks (12 U.S.C. 1715z-2); Housing in Military Impacted Areas
(12 U.S.C. 1715z-3(c)); Single Family Home Mortgage Coinsurance (12
U.S.C. 1715z-9); Graduated Payment Mortgages (12 U.S.C. 1715z-10);
Adjustable Rate Mortgages (ARMs) (12 U.S.C. 1715z-16); and Home Equity
Conversion Mortgage (HECM) (12 U.S.C. 1715z-20).
Sec. 36.82 Exemptions.
(a) Applications for insurance in connection with a refinancing
transaction are excluded from the coverage of this subpart E if an
appraisal is not required under the applicable procedures established
by the Secretary.
(b) Limited paint inspection. The requirements of Secs. 36.86 and
36.88 do not apply for a specific deteriorated paint surface on which a
paint inspection has been completed in accordance with part 37,
subparts B or C, of this subtitle and indicates the absence of lead-
based paint (i.e. lead-free). To be exempt from Secs. 36.86 and 36.88,
documentation of the absence of lead-based paint on each deteriorated
surface must be provided to the fee panel appraiser or direct
endorsement appraiser. Results of additional test(s) by a certified
paint inspector may be used to confirm or refute a prior finding.
Sec. 36.84 Lead hazard information pamphlet.
When an appraisal is required for refinancing under a program
described in Sec. 36.80, each mortgagee shall provide each prospective
occupant residing in the residential property prior to the effective
date of the regulation implementing section 1018 of Title X of the
Housing and Community Development Act of 1992, with the lead hazard
information pamphlet developed by the Environmental Protection Agency,
pursuant to section 406(a) of the Toxic Substances Control Act, 15
U.S.C. 2686.
Sec. 36.86 Visual evaluation of painted surfaces.
The mortgagee must require the appraiser to conduct a visual
evaluation of all painted surfaces in order to identify deteriorated
paint.
Sec. 36.88 Paint repair and cleanup.
(a) Paint repair and cleanup. (1) Each deteriorated paint surface
must be repaired, and cleanup of the worksite must be conducted, in
accordance with part 37, subpart D, of this subtitle.
(2) The commitment or other approval document must contain the
requirement that all deteriorated paint surfaces must be repaired and
cleanup of the worksite conducted before the mortgage is endorsed for
insurance.
(b) Escrow procedure. An escrow fund may be established in order to
conduct paint repair and cleanup after the mortgage is endorsed for
insurance only in the following three cases:
(1) For mortgage insurance to finance rehabilitation work under 12
U.S.C. 1709(k), provided that paint repair and cleanup are conducted in
conjunction with the rehabilitation work and will be completed as
expeditiously as possible; or
(2) For HECM mortgage insurance, provided that the paint repair and
cleanup costs do not exceed 15 percent of the HECM maximum claim amount
and the payment model includes a provision for funds reserved for post-
endorsement repairs. Paint repair and cleanup must be completed as
expeditiously as possible; or
(3) When weather conditions prevent the completion of paint repair
and cleanup on exterior surfaces, provided that paint repair and
cleanup are completed as soon as practicable.
Subpart F--Disposition of HUD-Owned Single Family Property (With
Sufficient Appropriations)
Sec. 36.100 Purpose and applicability.
The purpose of this subpart F is to establish procedures to
eliminate as far as practicable lead-based paint hazards prior to the
disposition (i.e. sale) of a single family property that is owned by
HUD. The Secretary shall determine:
(a) If there are sufficient appropriations to cover the costs of
Secs. 36.104-36.108; and
(b) When the procedures in these sections will take effect.
Sec. 36.102 Exemptions.
(a) In the absence of appropriations sufficient to cover the costs
of Secs. 36.104 through 36.108 as determined by the
[[Page 29211]]
Secretary, these requirements shall not apply to the Department.
Instead, the Department shall, at a minimum, follow the requirements of
subpart G of this part.
(b) A dwelling unit that has sustained extensive damage requiring
major rehabilitation or demolition is exempt from the requirements of
Secs. 36.104 through 36.108.
Sec. 36.104 Disposition of single family property constructed before
1960.
(a) Hazard evaluation. Before the closing of the sale of the
property, the Department shall conduct a risk assessment and a paint
inspection in accordance with part 37, subparts B and C, of this
subtitle.
(b) Abatement of lead-based paint hazards. Before the closing of
the sale of the property, the Department shall conduct abatement of all
identified lead-based paint hazards in accordance with part 37, subpart
F, of this subtitle. Abatement is completed when cleanup and clearance
are achieved in accordance with part 37, subparts H and I, of this
subtitle. In the case of a sale to a non-occupant purchaser, abatement
may be made a condition of sale with sufficient funds escrowed. In the
case of a HUD-owned property leased to a unit of government or a
nonprofit organization under a program administered by the Secretary,
the Department shall make abatement a condition of the lease agreement
and the lessor shall certify acceptance of the abatement
responsibility. Occupancy is not permitted in either case until all
required abatement is complete.
Sec. 36.106 Disposition of single family property constructed after
1959 and before 1978.
(a) Exemption. The Secretary may waive the paint inspection and
risk assessment requirements of this section if documentation is
provided to the Secretary that a risk assessment, performed by a
certified risk assessor, shows an absence of lead-based paint hazards,
or that a paint inspection, performed by a certified paint inspector,
shows an absence of lead-based paint. In addition, the Secretary may
waive the requirements of this section if a clearance test conducted by
a certified risk assessor has indicated the absence of lead-based paint
hazards.
(b) Hazard evaluation. Before the closing of the sale of the
property, the Department shall conduct a risk assessment and a paint
inspection in accordance with part 37, subparts B and C, of this
subtitle.
Sec. 36.108 Other required practices.
(a) Required practices. If abatement of lead-based paint hazards is
conducted, the following practices are required:
(1) Occupant protection and worksite preparation in accordance with
part 37, subpart G, of this subtitle.
(2) Monitoring must be conducted in accordance with part 37,
subpart J, of this subtitle if the Department retains ownership of the
property for more than 1 year. In the case of a HUD-owned property
leased to a unit of government or a nonprofit organization under a
program administered by the Secretary, the Department shall make
monitoring a condition of the lease agreement and the lessor shall
certify acceptance of the monitoring responsibility.
(b) Control of new hazards. If monitoring identifies new lead-based
paint hazards, the Department or the lessor shall conduct additional
abatement activities in accordance with part 37, subpart F, of this
subtitle. Abatement is completed when cleanup and clearance are
achieved in accordance with part 37, subparts H and I, of this
subtitle.
Subpart G--Disposition of HUD-Owned Single Family Property (Without
Sufficient Appropriations)
Sec. 36.120 Purpose and applicability.
In the absence of appropriations sufficient to cover the costs of
subpart F of this part as determined by the Secretary, the purpose of
this subpart G is to establish alternative procedures to eliminate as
far as practicable lead-based paint hazards prior to the disposition
(i.e. sale) of a single family property that is owned by HUD.
Sec. 36.122 Exemptions.
(a) Limited paint inspection. The Department shall be exempt from
the requirements of Secs. 36.124 through 36.128 for a specific
deteriorated paint surface if documentation exists that a paint
inspection has been completed in accordance with part 37, subparts B or
C, of this subtitle and indicates the absence of lead-based paint on
each surface to be exempt (i.e. lead-free). Results of additional
test(s) by a certified paint inspector may be used to confirm or refute
a prior finding.
(b) Extensive damage. A dwelling unit that has sustained extensive
damage requiring major rehabilitation or demolition is exempt from the
requirements of Secs. 36.124 through 36.128.
Sec. 36.124 Visual evaluation of painted surfaces.
Before the closing of the sale of the property, the Department
shall conduct a visual evaluation of all painted surfaces in order to
identify deteriorated paint.
Sec. 36.126 Paint repair and cleanup.
(a) Paint repair and cleanup. Before the closing of the sale of the
property, the Department shall repair each deteriorated paint surface,
and conduct cleanup of the worksite, in accordance with part 37,
subpart D, of this subtitle.
(b) Repainting exemption. The Department may be exempt from the
repainting requirements described in Sec. 37.50(f) of this subtitle if
weather conditions make repainting infeasible or if the property is
scheduled for major rehabilitation or demolition. If the Department
does not repaint a property because of weather conditions, major
rehabilitation, or demolition, the possible existence of a lead-based
paint hazard must be disclosed to the potential purchaser before the
closing of the sale of the property.
(c) Condition of sale or lease. In the case of a sale to a non-
occupant purchaser, paint repair and cleanup may be made a condition of
sale with sufficient sale funds escrowed. In the case of a HUD-owned
property leased to a unit of government or a nonprofit organization
under a program administered by the Secretary, the Department shall
make paint repair and cleanup a condition of the lease agreement and
the lessor shall certify acceptance of the abatement responsibility.
(d) Occupancy. In the case of a sale or lease, occupancy is not
permitted until all required paint repair and cleanup is complete.
Sec. 36.128 Monitoring.
If the Department retains ownership of the property for more than 1
year, monitoring must be conducted in accordance with part 37, subpart
J, of this subtitle. In the case of a HUD-owned property leased to a
unit of government or a nonprofit organization under a program
administered by the Secretary, the Department shall make monitoring a
condition of the lease agreement and the lessor shall certify
acceptance of the monitoring responsibility. If monitoring identifies
new deteriorated paint surfaces, the Department or the lessor shall
conduct paint repair and cleanup in accordance with part 37, subpart D,
of this subtitle.
Subpart H--Multifamily Insured Property
Sec. 36.140 Purpose and applicability.
The purpose of this subpart H is to establish procedures to
eliminate as far
[[Page 29212]]
as practicable lead-based paint hazards in a multifamily property that
receives mortgage insurance under a program administered by the
Secretary, including Multifamily Rental Housing (12 U.S.C. 1713);
Cooperative Housing (12 U.S.C. 1715e); Mortgage and Major Home
Improvement Loan Insurance for Urban Renewal Areas (12 U.S.C. 1715k (a)
and (h)); Multifamily Rental Housing for Moderate-Income Families (12
U.S.C. 1715(l)(d) (3) and (4)); Existing Multifamily Rental Housing (12
U.S.C. 1715n(f)); Mortgage Insurance for Housing for the Elderly (12
U.S.C. 1715v); Condominium Housing (12 U.S.C. 1715y); Title II of the
Housing and Community Development Act of 1987 (Emergency Low Income
Housing Preservation Act of 1987; 12 U.S.C. 1715l note); section 601 of
the Cranston-Gonzalez National Affordable Housing Act (Low Income
Housing Preservation and Resident Ownership Act of 1990; 12 U.S.C.
1715l note); and Supplemental Loan for Project Mortgage Insurance (12
U.S.C. 1715n).
Sec. 36.142 Exemptions.
(a) Applications for insurance in connection with a refinancing
transaction are excluded from the coverage of this subpart H if an
appraisal is not required under the applicable procedures established
by the Secretary.
(b) Limited paint inspection. The requirements of Secs. 36.146 and
36.148 do not apply for a specific deteriorated paint surface on which
a paint inspection has been completed in accordance with part 37,
subparts B or C, of this subtitle, and indicates the absence of lead-
based paint (i.e. lead-free). To be exempt from Secs. 36.146 and
36.148, documentation of the absence of lead-based paint on each
deteriorated paint surface must be provided to the Department's and the
sponsor's architect. Results of additional test(s) by a certified paint
inspector may be used to confirm or refute a prior finding.
Sec. 36.144 Lead hazard information pamphlet.
When an appraisal is required for refinancing under a program
described in Sec. 36.140, each mortgagee shall provide each prospective
occupant residing in the residential property prior to the effective
date of the regulation implementing section 1018 of Title X of the
Housing and Community Development Act of 1992, with the lead hazard
information pamphlet developed by the Environmental Protection Agency,
pursuant to section 406(a) of the Toxic Substances Control Act, 15
U.S.C. 2686.
Sec. 36.146 Visual evaluation of painted surfaces.
Before the issuance of the firm commitment, the Department's or the
sponsor's architect shall conduct a visual evaluation of all painted
surfaces in order to identify deteriorated paint.
Sec. 36.148 Paint repair and cleanup.
Before the issuance of the firm commitment, each deteriorated paint
surface must be repaired, and cleanup of the worksite conducted, in
accordance with part 37, subpart D, of this subtitle.
Subpart I--Project-Based Assistance
Sec. 36.160 Purpose and applicability.
(a) Purpose. The purpose of this subpart I is to establish
procedures to eliminate as far as practicable lead-based paint hazards
in a multifamily property receiving more than $5,000 in project-based
assistance under a program administered by the Secretary including the
Rent Supplement Payment Program (12 U.S.C. 1701s); Supportive Housing
for the Elderly (12 U.S.C. 1701q); Rental Assistance Payments Program
(12 U.S.C. 1715z-1); Supportive Housing for Persons with Disabilities
(42 U.S.C. 8013); Direct Loans for Housing for the Elderly or
Handicapped (12 U.S.C. 1701q); Section 8 Housing Assistance Payments
Program for New Construction, Section 8 Housing Assistance Payments
Program for Substantial Rehabilitation, Section 8 Housing Assistance
Payment Program for State Housing Agencies, Section 8 Housing
Assistance Payment Program for Section 515 Rural Rental Housing
Projects, and Section 8 Housing Assistance Payments Program--Special
Allocations (LMSA & Property Disposition Set Aside); Section 8 Moderate
Rehabilitation Program (42 U.S.C. 1437f); Project-Based Certificate
Program (42 U.S.C. 1437f); Homeownership of Multifamily Units (HOPE 2)
(42 U.S.C. 12871-12880); Shelter Plus Care Project- and Sponsor-Based
Rental Assistance (42 U.S.C. 11403 et seq.); and Assisted Housing Drug
Elimination Program (42 U.S.C. 11901 note).
(b) Applicability. (1) For a multifamily property receiving more
than the $5,000 per unit annual initial contract rent threshold in
project-based assistance under a program described in Sec. 36.160(a),
the requirements of Secs. 36.162-36.172 shall apply.
(2) For a multifamily property that receives less than the $5,000
per unit annual initial contract rent threshold in project-based
assistance under a program described in Sec. 36.160(a), or a single
family property that receives project-based assistance through the
Department's Section 8 Moderate Rehabilitation or Project-Based
Certificate programs, the requirements of Secs. 36.162 through 36.172
do not apply; and the requirements set out in Secs. 36.292 through
36.302 shall apply. For a multifamily property receiving less than the
$5,000 per unit in project-based assistance, the owner shall implement
the requirements specified for the housing authority in Secs. 36.292
through 36.302.
Sec. 36.162 Lead hazard information pamphlet.
If a tenant resides in a residential property prior to the
effective date of the regulation implementing section 1018 of Title X
of the Housing and Community Development Act of 1992, and the property
receives project-based assistance as described in Sec. 36.160, the
owner shall provide the lead hazard information pamphlet developed by
the Environmental Protection Agency, pursuant to section 406(a) of the
Toxic Substances Control Act, 15 U.S.C. 2686 to the tenant.
Sec. 36.164 Notice of evaluation, paint repair and hazard reduction
activities.
(a) Notice of evaluation. In cases where evaluation is undertaken,
each owner shall provide a notice to tenants.
(1) Notice of the evaluation must include:
(i) A summary of the nature, scope and results of the evaluation;
and
(ii) A contact name and phone number for more information, or to
obtain access to the actual evaluation report.
(2) The owner shall post or distribute the notice within 15
calendar days of receiving the evaluation report.
(b) Notice of paint repair and hazard reduction. In cases where
paint repair or hazard reduction is undertaken, each owner shall
provide a notice to tenants.
(1) Notice of paint repair or hazard reduction must include:
(i) A summary of the nature, scope and results of the paint repair
or hazard reduction;
(ii) A contact name and phone number for more information; and
(iii) Available information on the location of any remaining lead-
based paint on a surface-by-surface basis.
(2) The owner shall post or distribute the notice within 15
calendar days of completing paint repair or hazard reduction.
(3) The owner shall periodically update the notice, based on any
reevaluation of the residential property and as additional paint repair
or hazard reduction work is conducted.
[[Page 29213]]
(c) Availability of notices of evaluation, paint repair and hazard
reduction. (1) The notices of evaluation, paint repair or hazard
reduction must be of a size and type that is easily read by tenants.
(2) To the extent practicable, each notice shall be made available,
upon request, in an accessible format to persons with disabilities
(i.e. braille, large type, computer disk, audio tape).
(3) To the extent practicable, each notice shall be provided in the
tenant's primary language.
(4) The owner shall provide the notices to the tenants by:
(i) Posting it in a centrally located, easily accessible common
area; or
(ii) Distributing it to each occupied dwelling unit.
Sec. 36.166 Risk assessments.
(a) Risk assessments prior to the agreement period. Prior to the
agreement to enter into a housing assistance payment (HAP) contract or
the project rental assistance contract (PRAC), each owner shall
complete a risk assessment in accordance with part 37, subpart B, of
this subtitle. If the risk assessment identifies lead-based paint
hazards, the owner shall also submit a plan in accordance with
Sec. 36.168 prior to execution of the Agreement to Enter into a HAP
Contract or the PRAC contract.
(b) Risk assessment during the housing assistance payment contract
period. If a risk assessment and a hazard reduction plan were not
completed prior to the agreement period described in (a) of this
section, each owner shall complete a risk assessment in accordance with
part 37, subpart B, of this subtitle. If the risk assessment identifies
lead-based paint hazards, the owner shall submit a plan in accordance
with Sec. 36.168. Each risk assessment must be completed no later than
the following schedule or a schedule otherwise determined by the
Secretary:
(1) Risk assessments must be completed on or before (2 years after
the effective date of this rule) in a multifamily property constructed
before 1960.
(2) Risk assessments must be completed on or before (4 years after
the effective date of this rule) in a multifamily property constructed
after 1959 and before 1965.
(3) Risk assessments must be completed on or before (6 years after
the effective date of this rule) in a multifamily property constructed
after 1964 and before 1971.
(4) Risk assessments must be completed on or before (8 years after
the effective date of this rule) in a multifamily property constructed
after 1970 and before 1978.
Sec. 36.168 Hazard reduction plan.
If a risk assessment report identifies lead-based paint hazards,
the owner shall develop an hazard reduction plan (hereafter, ``the
plan'').
(a) Contents of the plan. The plan must propose hazard reduction
activities consistent with the findings of the risk assessment report.
Hazard reduction must be conducted in accordance with part 37, subparts
E and F, of this subtitle, and are completed when cleanup and clearance
is achieved in accordance with part 37, subparts H and I, of this
subtitle. The plan must include the following:
(1) A summary of the nature, scope and results of the risk
assessment, including the acceptable hazard reduction methods
identified by the risk assessor;
(2) A detailed description of the nature and scope of the hazard
reduction to be conducted;
(3) A description of how the requirements of Sec. 36.172 will be
conducted;
(4) A schedule for completing initial hazard reduction;
(5) An estimated cost of conducting the initial hazard reduction
activities, including costs for clean-up, clearance, and monitoring;
and
(6) Proof that the owner has sufficient funds to complete the
initial hazard reduction activities proposed in the plan, except that
such proof is not required for properties receiving assistance under
the Section 8 Project-Based Certificate program.
(b) Owner action. (1) If no rent adjustment is necessary to
implement the plan, the owner shall certify to the Department that the
contents of the plan are consistent with the requirements of part 37,
subparts E, F, H, and I, of this subtitle. The certification must be
submitted to the Department and a copy must be provided to any Contract
Administrator or HA no later than 120 days after completion of the risk
assessment, unless otherwise permitted by the Department.
(2) If a rent adjustment is necessary to implement the hazard
reduction plan, the owner shall submit the plan to the Department and a
copy must be provided to any Contract Administrator or HA in
conjunction with the next rent adjustment request, but no later than
120 days after completion of the risk assessment, unless otherwise
permitted by the Department. This requirement does not apply to
properties receiving assistance under the Section 8 Project-Based
Certificate program.
(c) HUD approval. The Department shall review each plan submitted
by an owner in conjunction with a rent adjustment request. The
Department may recommend alternative activities for reducing lead-based
paint hazards if the hazard reduction activities described in the plan
are determined by the Department to be too costly for the property. Any
alternative activity proposed by the Department must be consistent with
the risk assessment report for the property and must be conducted in
accordance with part 37, subparts E, F, H, and I, of this subtitle. The
Department shall also conduct an environmental review in accordance
with part 50 of this subtitle prior to approval of the hazard reduction
plan or recommendation of alternative hazard reduction activities. A
copy of the Department's determinations shall be transmitted to any
Contract Administrator or HA. The requirements of this paragraph (c) do
not apply to properties receiving assistance under the Section 8
Project-Based Certificate program.
Sec. 36.169 Hazard reduction.
Each owner shall conduct hazard reduction to treat the lead-based
paint hazards identified in Sec. 36.166 in accordance with part 37,
subparts E and F, of this subtitle. Hazard reduction are considered
completed when cleanup and clearance are achieved in accordance with
part 37, subparts H and I, of this subtitle.
Sec. 36.170 EBL child.
(a) Risk assessment and hazard reduction. If a child less than 6
years of age living in a dwelling unit has an EBL, the owner shall
immediately conduct a risk assessment in accordance with part 37,
subpart B, of this subtitle. Hazard reduction of identified lead-based
paint hazards must be conducted in accordance with part 37, subparts E
and F, of this subtitle, and are completed when cleanup and clearance
are achieved in accordance with part 37, subparts H and I, of this
subtitle.
(b) Reporting requirement. The owner shall report the name and
address of an identified EBL child to the State or local health agency.
In the case of a property receiving assistance under the Section 8
Project-Based Certificate program and the Section 8 Moderate
Rehabilitation program, the owner shall also report the name and
address of the EBL child to the public housing agency.
Sec. 36.172 Other required practices.
(a) Required practices. If hazard reduction is conducted the
following practices are required:
[[Page 29214]]
(1) Occupant protection and worksite preparation in accordance with
part 37, subpart G, of this subtitle.
(2) Monitoring in accordance with part 37, subpart J, of this
subtitle.
(b) Control of new hazards. If monitoring identifies new lead-based
paint hazards, each owner shall conduct additional hazard reduction
activities in accordance with subparts E and F. Hazard reduction is
completed when cleanup and clearance are achieved in accordance with
part 37, subparts H and I, of this subtitle.
Subpart J--Disposition of HUD-Owned and Mortgagee-in-Possession
Multifamily Property (With Sufficient Appropriations)
Sec. 36.180 Purpose and applicability.
The purpose of this subpart is to establish procedures to eliminate
as far as practicable lead-based paint hazards prior to the disposition
(i.e. sale) of a multifamily property that is owned by HUD or for which
HUD is identified as mortgagee-in-possession. The Secretary shall
determine:
(a) if there are sufficient appropriations to cover the costs of
Secs. 36.184 through 36.190; and
(b) when the procedures in these sections will take effect.
Sec. 36.182 Exemption.
(a) In the absence of appropriations sufficient to cover the costs
of Secs. 36.184 through 36.190 as determined by the Secretary, these
requirements shall not apply to the Department. Instead, the Department
shall, at a minimum, follow the requirements of subpart K of this part.
(b) A dwelling unit that has sustained extensive damage requiring
major rehabilitation or demolition is exempt from the requirements of
Secs. 36.184 through 36.190.
Sec. 36.184 Disposition of multifamily property constructed before
1960.
(a) Hazard evaluation. Before publicly advertising the property for
sale, the Department shall conduct a risk assessment and a paint
inspection in accordance with part 37, subparts B and C, of this
subtitle.
(b) Abatement of lead-based paint hazards. The Department shall
conduct abatement of identified lead-based paint hazards in accordance
with part 37, subpart F, of this subtitle. Abatement is completed when
cleanup and clearance are achieved in accordance with part 37, subparts
H and I, of this subtitle. Abatement of all lead-based paint hazards
must be completed no later than conveyance of the title by the
Department at a HUD-owned sale, or before a foreclosure sale caused by
the Secretary when the Department is Mortgagee-in-Possession of the
property. If the disposition program under part 290 of this title
provides for repairs to be performed by the purchaser, abatement may be
included in the required repairs.
Sec. 36.186 Disposition of multifamily property constructed after 1959
and before 1978.
(a) Exemption. The Secretary may waive the paint inspection and
risk assessment requirements of this section if documentation is
provided to the Secretary that a risk assessment, performed by a
certified risk assessor, shows an absence of lead-based paint hazards,
or that a paint inspection, performed by a certified paint inspector,
shows an absence of lead-based paint. In addition, the Secretary may
waive the requirements of this section if a clearance test conducted by
a certified risk assessor has indicated the absence of lead-based paint
hazards.
(b) Hazard evaluation. Before publicly advertising the property for
sale, the Department shall conduct a risk assessment and a paint
inspection in accordance with part 37, subparts B and C, of this
subtitle.
Sec. 36.188 EBL child.
(a) Hazard evaluation and reduction. If a child less than age 6
living in a multifamily dwelling unit owned by the Department (or where
the Department is Mortgagee-in-Possession) has an EBL, the Department
shall immediately conduct a risk assessment and a paint inspection in
accordance with part 37, subparts B and C, of this subtitle. Reduction
of identified lead-based paint hazards must be conducted in accordance
with part 37, subparts E and F, of this subtitle, and is completed when
cleanup and clearance are achieved in accordance with part 37, subparts
H and I, of this subtitle.
(b) Reporting requirement. The Department shall report the name and
address of an identified EBL child to the State or local health agency.
Sec. 36.190 Other required practices.
(a) Required practices. If reduction of lead-based paint hazards is
conducted, the following practices are required:
(1) Occupant protection and worksite preparation in accordance with
part 37, subpart G, of this subtitle.
(2) Monitoring must be conducted in accordance with part 37,
subpart J, of this subtitle if the Department retains ownership of the
property for more than 1 year.
(b) Control of new hazards. If monitoring identifies new lead-based
paint hazards, the Department shall conduct abatement in accordance
with part 37, subpart F, of this subtitle. Abatement is completed when
cleanup and clearance are achieved in accordance with part 37, subparts
H and I, of this subtitle.
Subpart K--Disposition of HUD-Owned and Mortgagee-in-Possession
Multifamily Property (Without Sufficient Appropriations)
Sec. 36.200 Purpose and applicability.
In the absence of appropriations sufficient to cover the costs of
subpart J as determined by the Secretary, the purpose of this subpart
is to establish alternative procedures to eliminate as far as
practicable lead-based paint hazards prior to the disposition (i.e.
sale) of a multifamily property that is owned by HUD or for which HUD
is identified as mortgagee-in-possession.
Sec. 36.202 Exemptions.
(a) Limited paint inspection. The Department shall be exempt from
the requirements of Secs. 36.204 through 36.210 for a specific
deteriorated paint surface if documentation exists that a paint
inspection has been completed in accordance with part 37, subparts B or
C, of this subtitle, and indicates the absence of lead-based paint on
each surface to be exempt (i.e. lead-free). Results of additional
test(s) by a certified paint inspector may be used to confirm or refute
a prior finding.
(b) Extensive damage. A dwelling unit that has sustained extensive
damage requiring major rehabilitation or demolition is exempt from the
requirements of Secs. 36.204 through 36.210.
Sec. 36.204 Visual evaluation of painted surfaces.
Before publicly advertising the property for sale, the Department
shall conduct a visual evaluation of all painted surfaces in order to
identify deteriorated paint.
Sec. 36.206 Paint repair and cleanup.
(a) Paint repair and cleanup. The Department shall repair each
deteriorated paint surface and conduct cleanup of the worksite in
accordance with part 37, subpart D, of this subtitle.
(b) Completion of paint repair and cleanup. Paint repair and
cleanup of deteriorated paint surfaces must be completed no later than
conveyance of the title by the Department at a HUD-owned sale, or
before a foreclosure sale caused by the Secretary when the Department
is Mortgagee-in-Possession of the property. If the disposition program
under part 290 of this title
[[Page 29215]]
provides for repairs to be performed by the purchaser, paint repair and
cleanup may be included in the required repairs.
(c) Occupancy. In the case of sale or lease, occupancy is not
permitted until all required paint repair and cleanup is complete.
Sec. 36.208 EBL child.
(a) Hazard evaluation and reduction. If a child less than age 6
living in a multifamily dwelling unit owned by the Department (or where
the Department is Mortgagee-in-Possession) has an EBL, the Department
shall immediately conduct a risk assessment in accordance with part 37,
subpart B, of this subtitle. Reduction of identified lead-based paint
hazards must be conducted in accordance with part 37, subparts E and F,
of this subtitle, and are completed when cleanup and clearance are
achieved in accordance with part 37, subparts H and I, of this
subtitle.
(b) Reporting requirement. The Department shall report the name and
address of an identified EBL child to the State or local health agency.
Sec. 36.210 Monitoring.
If the Department retains ownership of the property for more than 1
year, monitoring must be conducted in accordance with part 37, subpart
J, of this subtitle. If monitoring identifies new deteriorated paint
surfaces, the Department shall conduct paint repair and cleanup in
accordance with part 37, subpart D, of this subtitle.
Subpart L--Rehabilitation
Sec. 36.220 Purpose and applicability.
(a) Purpose and applicability. The purpose of this subpart 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 the
Secretary. These programs include the Community Development Block Grant
(42 U.S.C. 5301 et seq.), HOME Investment Partnerships (42 U.S.C.
12701-12840), HOPE for Homeownership of Single Family Homes (HOPE 3),
(42 U.S.C. 12891-12898); Indian Community Development Block Grant
Program (42 U.S.C. 5301 et seq., and 25 U.S.C. 450 et seq.); Indian
HOME Investment Partnerships (42 U.S.C. 12701-12840, and 25 U.S.C. 450
et seq.); Homeownership of Multifamily Units (HOPE 2) (42 U.S.C. 12871-
12880); Emergency Shelter Grants (42 U.S.C. 11371-11378); Permanent
Housing for Handicapped Homeless Persons (42 U.S.C. 11381 et seq.);
Supportive Housing Program (42 U.S.C. 11381-11389); and the Flexible
Subsidy-Capital Improvement Loan Program (12 U.S.C. 1715z-1a).
(b) Delegation of responsibility. Where applicable, the grantee or
participating jurisdiction may require the subrecipient or other entity
administering Federal rehabilitation assistance to perform the
responsibilities set forth in this subpart.
Sec. 36.222 Definitions.
For purposes of this subpart:
CILP recipient means an owner of a multifamily property which is
undergoing rehabilitation funded by the Flexible Subsidy-Capital
Improvement Loan Program (CILP).
Hard costs of rehabilitation means:
(1) Costs to correct substandard conditions or to meet the
applicable local rehabilitation standards;
(2) Costs to make essential improvements, including energy-related
repairs, and those necessary to permit use by handicapped persons; 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.
Subrecipient means any organization selected by the grantee or
participating jurisdiction to administer all or a portion of the
Federal rehabilitation assistance. An owner or developer receiving
Federal rehabilitation assistance for a residential property is not
considered a subrecipient for the purposes of carrying out that
project.
Sec. 36.224 Exemptions.
(a) Any rehabilitation that does not disturb a painted surface is
exempt from the requirements of this subpart, except for the
requirements of Sec. 36.230.
(b) If a grantee, participating jurisdiction or CILP recipient
certifies to the Department that a residential property undergoing
federally funded rehabilitation has previously removed all lead-based
paint, the requirements of this subpart do not apply.
(c) A dwelling unit may be exempt from the requirement to conduct a
limited paint inspection if the grantee, participating jurisdiction or
CILP recipient provides certification that a paint inspection has been
previously completed in accordance with part 37, subpart C, of this
subtitle and indicates the absence of lead-based paint in the dwelling
unit (i.e. lead-free). Results of additional test(s) by a certified
paint inspector may be used to confirm or refute a prior finding.
Sec. 36.226 Rehabilitation costs.
(a) Applicability. This section applies to recipients of Federal
rehabilitation assistance as described in Sec. 36.220, except for CILP
recipients.
(b) Rehabilitation assistance. For purposes of implementing
Secs. 36.234 through 36.238, rehabilitation assistance is based on an
average per unit investment of Federal funds for the hard costs of
rehabilitation excluding lead-based paint hazard evaluation and cleanup
activities.
(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 Rehab $ = [Total Federal Rehab Assistance for Units + (Federal
Rehab $ for Common Areas & Exterior Painted Surfaces x % of Units
Federally Assisted)] / Number of Federally Assisted Units.
(2) Example: 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 would be
$12,250. This is illustrated as follows: $12,250 = [$90,000 + ($10,000
x 80%)] / 8.
Sec. 36.228 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. 36.229 Determining evaluation, paint repair and hazard reduction
requirements.
The following examples illustrate how to determine whether the
requirements of Secs. 36.234, 36.236, or 36.238 apply to a dwelling
unit receiving Federal rehabilitation assistance (dollar amounts are on
a per unit basis):
(a) If the total investment of Federal assistance is $2,000, and
the hard costs of rehabilitation are $10,000, the lead-based paint
requirements would be: visual evaluation, paint repair and cleanup
under Sec. 36.232, because Federal assistance is less than $5,000.
(b) If the total investment of Federal assistance is $6,000, and
the hard costs of rehabilitation are $2,000, the lead-
[[Page 29216]]
based paint requirements would be the same as in paragraph (a) of this
section. Although the total Federal investment is more than $5,000,
only $2,000 constitutes Federal rehabilitation assistance.
(c) If the total investment of Federal assistance is $6,000, and
the hard costs of rehabilitation are $6,000, the lead-based paint
requirements would be: paint inspection, risk assessment and reduction
under Sec. 36.236.
Sec. 36.230 Lead hazard information pamphlet.
The grantee, participating jurisdiction or CILP recipient shall
provide the lead hazard information pamphlet developed by the
Environmental Protection Agency pursuant to section 406(a) of the Toxic
Substance Control Act, 15 U.S.C. 2686 to the tenant, owner-occupant or
purchaser of a residential property that receives Federal
rehabilitation assistance under this subpart.
Sec. 36.232 Notice of evaluation, paint repair and hazard reduction
activities.
(a) Notice of evaluation. In cases where evaluation is undertaken
as part of federally funded rehabilitation, each grantee, participating
jurisdiction or CILP recipient shall provide a notice to tenants.
(1) Notice of the evaluation must include:
(i) A summary of the nature, scope and results of the evaluation;
and
(ii) A contact name and phone number for more information or to
obtain access to the actual evaluation report.
(2) The grantee, participating jurisdiction or CILP recipient shall
post or distribute the notice within 15 calendar days of receiving the
evaluation report.
(b) Notice of paint repair and hazard reduction activities. In
cases where paint repair or hazard reduction activities are undertaken
as part of a federally assisted rehabilitation, each grantee,
participating jurisdiction or CILP recipient shall provide a notice to
tenants.
(1) Notice of paint repair or hazard reduction activities must
include:
(i) A summary of the nature, scope and results of the paint repair
or lead hazard reduction activities;
(ii) A contact name and phone number for more information; and
(iii) Available information on the location of any remaining lead-
based paint on a surface-by-surface basis.
(2) The grantee, participating jurisdiction or CILP recipient shall
post or distribute the notice within 15 calendar days of completing
hazard reduction activities.
(3) The grantee, participating jurisdiction or CILP recipient shall
periodically update the notice, based on any reevaluation of the
residential property and as additional paint repair or lead hazard
reduction work is conducted.
(c) Availability of notices of evaluation, paint repair and hazard
reduction. (1) The notices of evaluation, paint repair or hazard
reduction must be of a size and type that are easily read by tenants.
(2) To the extent practicable, each notice shall be made available,
upon request, in an accessible format to persons with disabilities
(i.e. braille, large type, computer disk, audio tape).
(3) To the extent practicable, each notice shall be provided in the
tenant's primary language.
(4) The owner shall provide each notice to the tenants by:
(i) Posting it in a centrally located, easily accessible common
area; or
(ii) Distributing it to each occupied dwelling unit.
Sec. 36.234 Residential property receiving an average of less than
$5,000 per unit in Federal rehabilitation assistance.
(a) Visual evaluation. Each grantee, participating jurisdiction or
CILP recipient shall conduct a visual evaluation of all painted
surfaces to be disturbed by rehabilitation in order to identify
deteriorated paint.
(b) Paint repair and cleanup. Before occupancy of a vacant dwelling
unit or, where a unit is occupied, before completion of rehabilitation,
the grantee, participating jurisdiction or CILP recipient shall repair
each deteriorated paint surface and conduct cleanup of the worksite in
accordance with part 37, subpart D, of this subtitle.
Sec. 36.236 Residential property receiving an average of $5,000 or
more and $25,000 or less per unit in Federal rehabilitation assistance.
(a) Limited paint inspection. Each grantee, participating
jurisdiction or CILP recipient shall complete a limited paint
inspection in accordance with part 37, subpart C, of this subtitle.
Each limited paint inspection must be conducted before occupancy of a
vacant dwelling unit or, where a unit is occupied, before
rehabilitation work begins.
(b) Risk assessment. Each grantee, participating jurisdiction or
CILP recipient shall complete a risk assessment in the federally
assisted dwelling units, and in associated common areas and exterior
painted surfaces, in accordance with part 37, subpart B, of this
subtitle. A risk assessment must be conducted before occupancy of a
vacant dwelling unit or, where a unit is occupied, before
rehabilitation work begins.
(c) Hazard reduction. Each grantee, participating jurisdiction or
CILP recipient shall conduct hazard reduction activities in accordance
with part 37, subparts E and F, of this subtitle if a limited paint
inspection identifies lead-based paint, or a risk assessment identifies
a lead-based paint hazard. Hazard reduction activities are completed
when cleanup and clearance are achieved in accordance with part 37,
subparts H and I, of this subtitle.
Sec. 36.238 Residential property receiving an average of more than
$25,000 per unit in Federal rehabilitation assistance.
(a) Limited paint inspection. Each grantee, participating
jurisdiction or CILP recipient shall complete a limited paint
inspection in accordance with part 37, subpart C, of this subtitle.
Each limited paint inspection must be conducted before occupancy of a
vacant dwelling unit or, where a unit is occupied, before
rehabilitation work begins.
(b) Risk assessment. Each grantee, participating jurisdiction or
CILP recipient shall complete a risk assessment in the federally
assisted dwelling units, and in associated common areas and exterior
painted surfaces, in accordance with part 37, subpart B, of this
subtitle. A risk assessment must be conducted before occupancy of a
vacant dwelling unit or, where a unit is occupied, before
rehabilitation begins.
(c) Abatement of lead-based paint hazards. Each grantee,
participating jurisdiction or CILP recipient shall abate any lead-based
paint hazard on a surface to be disturbed by rehabilitation identified
in paragraphs (a) or (b) of this section in accordance with part 37,
subpart F, of this subtitle. Abatement is completed when cleanup and
clearance are achieved in accordance with part 37, subparts H and I, of
this subtitle.
(d) Hazard reduction. Each grantee, participating jurisdiction or
CILP recipient shall conduct hazard reduction activities in accordance
with part 37, subparts E and F, of this subtitle if a risk assessment
identifies a lead-based paint hazard on a surface not disturbed by
rehabilitation and the hazard has not been abated in accordance with
paragraph (c) of this section. Hazard reduction activities are
completed when cleanup and clearance are achieved in accordance with
part 37, subparts H and I, of this subtitle.
[[Page 29217]]
Sec. 36.240 Other required practices.
If paint repair or hazard reduction is conducted the following
practices are required:
(a) Occupant protection and worksite preparation in accordance with
part 37, subpart G, of this subtitle.
(b) Monitoring, to the extent practicable, must be conducted in
accordance with part 37, subpart J, of this subtitle.
Subpart M--Community Planning and Development (CPD) Non-
Rehabilitation Programs
Sec. 36.250 Purpose and applicability.
(a) Purpose and applicability. The purpose of this subpart is to
establish procedures to eliminate as far as practicable lead-based
paint hazards in a residential property that receives Federal
assistance under certain programs administered by the Secretary for
acquisition or leasing, tenant-based rental assistance, or for support
services or operation provided for a property. These programs include
the Community Development Block Grant (42 U.S.C. 5301 et seq.); HOME
Investment Partnerships (42 U.S.C. 12701-12840); Homeownership of
Multifamily Units (HOPE 2) (42 U.S.C. 12871-12880); HOPE for
Homeownership of Single Family Homes (HOPE 3) (42 U.S.C. 12891-12898);
Indian Community Development Block Grant Program (42 U.S.C. 5301 et
seq.); Indian HOME Investment Partnerships (25 U.S.C. 450 et seq.);
Housing Opportunities for Persons with Aids (HOPWA) (42 U.S.C. 12901-
12912); Permanent Housing for Handicapped Homeless Persons (42 U.S.C.
11381 et seq.); and Supportive Housing Program (42 U.S.C. 11381-11389).
(b) Delegation of responsibility. Where applicable, the grantee or
participating jurisdiction may require the subrecipient administering
Federal assistance to perform the responsibilities set forth in this
subpart.
Sec. 36.252 Definition--subrecipient.
Subrecipient means any organization selected by the grantee or
participating jurisdiction to administer all or a portion of the
Federal assistance. An owner or developer of an assisted property is
not considered a subrecipient for the purposes of carrying out that
project.
Sec. 36.254 Exemption--limited paint inspection.
The requirements of Secs. 36.258 and 36.260 do not apply for a
specific deteriorated paint surface if the grantee or participating
jurisdiction certifies that a paint inspection has been completed in
accordance with part 37, subparts B or C, of this subtitle, and
indicates the absence of lead-based paint on the specific deteriorated
paint surface (i.e. lead-free). Results of additional test(s) by a
certified paint inspector may be used to confirm or refute a prior
finding.
Sec. 36.256 Lead hazard information pamphlet.
The grantee or participating jurisdiction shall provide the lead
hazard information pamphlet developed by the Environmental Protection
Agency pursuant to section 406(a) of the Toxic Substance Control Act,
15 U.S.C. 2686 to the tenant, owner-occupant or purchaser of a
residential property that receives Federal assistance under this
subpart.
Sec. 36.258 Residential property constructed before 1950.
If a dwelling unit receives Federal assistance under this subpart
(except with tenant-based rental assistance), each grantee or
participating jurisdiction shall conduct:
(a) A visual evaluation of all painted surfaces in order to
identify deteriorated paint;
(b) Dust testing in accordance with Sec. 37.16 of this subtitle to
determine the presence of lead-contaminated dust; and
(c) Paint repair of each deteriorated surface and cleanup in
accordance with part 37, subpart D, of this subtitle before occupancy
of a vacant dwelling unit or, where a unit is occupied, immediately
after receipt of Federal assistance. If the dust testing required in
paragraph (b) of this section identifies the presence of lead-
contaminated dust, the grantee or participating jurisdiction shall
conduct cleanup of the horizontal surfaces in the room, dwelling unit
or common areas where the lead-contaminated dust is located. If the
dust testing indicates the absence of lead-contaminated dust, the
grantee or participating jurisdiction shall conduct cleanup of the
worksite.
Sec. 36.260 Residential property constructed after 1949 and before
1978.
If a dwelling unit receives Federal assistance under this subpart
(except with tenant-based rental assistance), each grantee or
participating jurisdiction shall conduct:
(a) A visual evaluation of all painted surfaces in order to
identify deteriorated paint;
(b) Paint repair of each deteriorated surface and cleanup of the
worksite in accordance with part 37, subpart D, of this subtitle before
occupancy of a vacant dwelling unit or, where a unit is occupied,
immediately after receipt of Federal assistance.
Sec. 36.262 Tenant-based rental assistance.
(a) Applicability. Tenant-based rental assistance provided to a
family with a child less than 6 years of age is subject to the
requirements of part 36, subpart O, of this subtitle, except for
Sec. 36.294.
(1) Lead hazard information pamphlet. The grantee or participating
jurisdiction shall provide the lead hazard information pamphlet in
accordance with Sec. 36.256.
(2) The HOME administering agency shall assume the responsibilities
of the HA set out in subpart O of this part.
(b) Monitoring. For assistance provided under part 92 of this
subtitle, monitoring must be conducted as part of the periodic unit
inspection required under Sec. 92.211(g) of this subtitle.
Subpart N--Public and Indian Housing Programs
Sec. 36.270 Purpose and applicability.
The purpose of this subpart is to establish procedures to eliminate
as far as practicable lead-based paint hazards in existing public and
Indian housing projects that are covered under Public Housing
Development (42 U.S.C. 1437b, 1437c and 1437g); Public Housing
Operating Subsidy (42 U.S.C. 1437g); Public Housing Authority Owned or
Leased Projects--Maintenance and Operation (42 U.S.C. 1437d and 1437g);
Public Housing Modernization (Comprehensive Grant Program) (42 U.S.C.
1437l); Public Housing Modernization (Comprehensive Improvement
Assistance Program) (42 U.S.C. 1437l); Homeownership and Opportunity
for People Everywhere (HOPE 1) (42 U.S.C. 1437aaa et seq.); Public and
Indian Housing Drug Elimination (42 U.S.C. 11901 note); and the Indian
Housing Programs (42 U.S.C. 1437aa et seq.).
Sec. 36.272 Definition--Public or Indian housing project.
Public or Indian housing project means a residential property
developed, acquired or assisted by a public or Indian housing agency
under the United States Housing Act of 1937 (42 U.S.C. 1437 et seq.)
and the improvement of any such property, other than under section 8 of
that 1937 Act.
Sec. 36.274 Lead hazard information pamphlet.
If a tenant resides in a dwelling unit prior to the effective date
of the regulation implementing section 1018 of Title X of the Housing
and Community Development Act of 1992 (42 U.S.C. 4852d), and the unit
receives Federal
[[Page 29218]]
assistance under a program described in Sec. 36.270, the public or
Indian housing agency (hereafter, ``HA'') shall provide the lead hazard
information pamphlet developed by the Environmental Protection Agency,
pursuant to section 406(a) of the Toxic Substances Control Act, 15
U.S.C. 2686, to the tenant upon recertification of income eligibility.
Sec. 36.276 Notices of evaluation and reduction of lead-based paint
and lead-based paint hazards.
(a) Notice of evaluation of lead-based paint and lead-based paint
hazards. In cases where lead-based paint or lead-based paint hazard
evaluation is undertaken, each HA shall provide a notice to all
tenants.
(1) Notice of the evaluation must include:
(i) A summary of the nature, scope and results of the evaluation;
and
(ii) A contact name and phone number for more information, or to
obtain access to the actual evaluation report.
(2) The HA shall post or distribute the notice within 15 calendar
days of receiving the evaluation report.
(b) Notice of reduction of lead-based paint or lead-based paint
hazards. In cases where reduction of lead-based paint or lead-based
paint hazards is undertaken, each HA shall provide a notice to tenants.
(1) Notice of hazard reduction must include:
(i) A summary of the nature, scope and results of the hazard
reduction activities;
(ii) A contact name and phone number for more information; and
(iii) Available information on the location of any remaining lead-
based paint on a surface-by-surface basis.
(2) The HA shall post or distribute the notice within 15 calendar
days of completing hazard reduction activities.
(3) The HA shall periodically update the notice, based on
reevaluation of the public and Indian housing project and as any
additional hazard reduction work is conducted.
(c) Availability of notices of lead hazard evaluation and reduction
activities. (1) The notices of evaluation and hazard reduction must be
of a size and type that is easily read by tenants.
(2) To the extent practicable, each notice shall be made available,
upon request, in an accessible format to persons with disabilities
(i.e. braille, large type, computer disk, audio tape).
(3) To the extent practicable, each notice shall be provided in the
tenant's primary language.
(4) The HA shall provide each notice to the tenants by:
(i) Posting it in a centrally located, easily accessible common
area; or
(ii) Distributing it to each occupied public and Indian housing
project unit.
Sec. 36.278 Evaluation.
(a) Exemption. A public or Indian housing project shall be exempt
from the requirements of this section if the HA can certify to the
Department that:
(1) The public or Indian housing project has previously had all
lead-based paint removed and all lead-based paint hazards have been
abated; or
(2) A paint inspection described in paragraph (b) of this section
and a risk assessment conducted in accordance with part 37, subpart B,
of this subtitle were completed prior to (the effective date of this
rule).
(b) Paint inspection. Each HA shall complete a paint inspection in
the public and Indian housing project in accordance with part 37,
subpart C, of this subtitle no later than (the effective date of this
rule). If a paint inspection was completed prior to [the effective date
of this rule], the Department strongly encourages each HA to conduct
quality control activities in accordance with procedures established by
the Secretary for on-site lead-based paint testing activities. Quality
control activities are encouraged in order to determine whether a paint
inspection has been properly performed and the results are reliable.
(c) Visual evaluation, dust and soil tests. If a paint inspection
has indicated the presence of lead-based paint, each HA shall complete
a visual evaluation to identify the location of deteriorated paint and
conduct dust and soil tests in the public and Indian housing project.
Dust and soil tests must be conducted in accordance with Secs. 37.16
and 37.18, of this subtitle, respectively, and must be completed on or
before January 1, 1999. The HA shall identify locations of deteriorated
lead-based paint based upon the visual evaluation and the paint
inspection.
(d) Soil test. Except for the mutual-help homeownership projects
and Turnkey III projects covered under the Indian Housing Program, each
HA shall complete a soil test in the public and Indian housing project,
even if a paint inspection has indicated that no lead-based paint is
present. A soil test must be conducted in accordance with Sec. 37.18 of
this subtitle and must be completed on or before January 1, 1999.
(e) Training. An individual or firm conducting evaluation other
than paint inspection on behalf of an HA shall be trained in lead
hazard evaluation. An individual or firm conducting paint inspection
shall meet the qualifications set out in Sec. 37.1(b) of this subtitle.
Sec. 36.280 Interim controls.
Each HA shall conduct interim controls to treat the lead-based
paint hazards identified in Sec. 36.278 in accordance with part 37,
subpart E, of this subtitle, prior to abatement of these hazards as
required in Sec. 36.282. Initial interim controls must begin within 30
days of completing the evaluation requirements described in
Sec. 36.278. Interim controls are completed when cleanup and clearance
are achieved in accordance with part 37, subparts H and I, of this
subtitle.
Sec. 36.282 Abatement.
Each HA shall abate all lead-based paint and lead-based paint
hazards identified in Sec. 36.278 in accordance with part 37, subpart
F, of this subtitle. Abatement must be conducted according to the
following schedule:
(a) HAs receiving modernization assistance. Each HA shall conduct
abatement of lead-based paint and lead-based paint hazards during the
course of physical improvements conducted under modernization as
described in part 968 of this title.
(b) HAs not receiving modernization assistance. Each HA shall
conduct abatement of lead-based paint and lead-based paint hazards as
soon as practicable after the evaluation requirements of Sec. 36.278
are completed. Abatement is completed when cleanup and clearance are
achieved in accordance with part 37, subparts H and I, of this
subtitle.
Sec. 36.284 EBL child.
(a) Hazard evaluation and reduction. If a child less than 6 years
of age living in a public or Indian housing project has an EBL, the HA
shall complete a risk assessment in accordance with part 37, subpart B,
of this subtitle, within 15 days of notification of the child's EBL.
The HA shall conduct reduction of identified lead-based paint hazards
in accordance with part 37, subparts E and F, of this subtitle, within
15 days from receipt of the risk assessment report. Hazard reduction
activities are completed when cleanup and clearance are achieved in
accordance with part 37, subparts H and I, of this subtitle; or
(b) Relocation. If a child less than 6 years of age living in a
public or Indian housing project has an EBL, the HA may assign the
family to a post-1978 or previously evaluated unit (as described in
Sec. 36.278) which was found to be free of lead-based paint hazards, or
in which such hazards have been abated as described in Sec. 36.282.
[[Page 29219]]
(c) Notice of hazard evaluation and reduction. The HA shall notify
building tenants of any evaluation or hazard reduction activities as
described in Sec. 36.276.
(d) Reporting requirement. The HA shall report the name and address
of an identified EBL child to the State or local health agency.
Sec. 36.286 Other required practices.
(a) Required practices. If hazard reduction is conducted, the
following practices are required:
(1) Occupant protection and worksite preparation in accordance with
part 37, subpart G, of this subtitle.
(2) Monitoring in accordance with part 37, subpart J, of this
subtitle.
(b) Control of new hazards. If monitoring identifies new lead-based
paint hazards, each HA shall conduct additional hazard reduction
activities in accordance with part 37, subparts E and F, of this
subtitle. Hazard reduction is completed when cleanup and clearance are
achieved in accordance with part 37, subparts H and I, of this
subtitle.
Subpart O--Tenant-Based Rental Assistance
Sec. 36.290 Purpose and applicability.
(a) Purpose. The purpose of this subpart is to establish procedures
to eliminate as far as practicable lead-based paint hazards in existing
dwelling units where a tenant with a child less than 6 years of age
resides and the tenant receives assistance through a tenant-based
housing assistance program administered by the Secretary. The tenant-
based housing assistance programs are the section 8 tenant-based rental
certificate program and the section 8 rental voucher program under
section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f);
the HOME Tenant-Based Rental Assistance Program (42 U.S.C. 12701-
12840); and Shelter Plus Care Tenant-Based Rental Assistance (42 U.S.C.
11403 et.seq.).
(b) Applicability. The requirements of this subpart apply to:
(1) All painted surfaces within a dwelling unit constructed before
1978 (including ceilings);
(2) Painted surfaces in the entrance and hallway providing access
to a unit;
(3) Exterior painted surfaces up to 5 feet from the floor or ground
that are readily accessible to a child under age six including, but not
limited to, walls, stairs, decks, porches, railings, windows and doors;
and
(4) painted playground equipment and painted boundary fences
surrounding a child's exterior play area.
(c) The requirements of this section do not apply to outbuildings
such as garages and sheds, or bare soil surrounding the residential
property.
Sec. 36.292 Exemptions.
(a) Limited paint inspection. The requirements of Secs. 36.296
through 36.302 do not apply for a specific deteriorated paint surface
if the owner certifies to the HA that a paint inspection has been
completed in accordance with part 37, subparts B or C, of this
subtitle, and indicates the absence of lead-based paint on the specific
deteriorated paint surface (i.e. lead-free). Results of additional
test(s) by a certified paint inspector may be used to confirm or refute
a prior finding.
(b) Abatement of lead-based paint. An owner shall be exempt from
the requirements of Secs. 36.296 through 36.302 for a dwelling unit if
certification is provided to the HA that the unit has been abated of
all lead-based paint in accordance with part 37, subpart F, of this
subtitle.
Sec. 36.294 Lead hazard information pamphlet.
If a tenant resides in a dwelling unit prior to the effective date
of the regulation implementing section 1018 of Title X of the Housing
and Community Development Act of 1992, and receives Federal assistance
under a program described in Sec. 36.290, the HA shall provide the lead
hazard information pamphlet developed by the Environmental Protection
Agency, pursuant to section 406(a) of the Toxic Substance Control Act,
15 U.S.C. 2686 to the tenant at the next periodic unit inspection
required under Sec. 982.405 of this title.
Sec. 36.296 Residential property constructed before 1950; initial
inspections.
(a) Evaluation. During the initial inspection required at
Sec. 982.305 of this title, a Housing Quality Standards (HQS) inspector
trained in lead hazard evaluation shall conduct:
(1) A visual evaluation of all painted surfaces in order to
identify deteriorated paint; and
(2) Dust testing in accordance with Sec. 37.16 of this subtitle to
determine the presence of lead in dust.
(b) Paint repair and cleanup. The owner shall repair each
deteriorated paint surface and conduct cleanup in accordance with part
37, subpart D, of this subtitle before occupancy of a vacant dwelling
unit or, where a unit is occupied, within 30 days of notification of
the results of the visual evaluation. If the dust testing required in
paragraph (b)(2) of this section identifies the presence of lead-
contaminated dust, the owner shall conduct cleanup of the horizontal
surfaces in the room, dwelling unit or common areas where the lead-
contaminated dust is located. If the dust testing indicates the absence
of lead-contaminated dust, the owner shall conduct cleanup of the
worksite.
Sec. 36.298 Residential property constructed before 1950; periodic
inspections.
(a) Visual evaluation. During the periodic inspection required at
Sec. 982.405 of this title, an HQS inspector trained in lead hazard
evaluation shall conduct a visual evaluation of all painted surfaces in
order to identify deteriorated paint.
(b) Paint repair and cleanup. The owner shall repair each
deteriorated paint surface and conduct cleanup of the worksite in
accordance with part 37, subpart D, of this subtitle, within 30 days of
notification of the results of the visual evaluation.
Sec. 36.300 Residential property constructed after 1949 and before
1978; initial and periodic inspections.
(a) Visual evaluation. During the initial and periodic inspections
required at Secs. 982.305 and 982.405 of this title, an HQS inspector
trained in lead hazard evaluation shall conduct a visual evaluation of
all painted surfaces in order to identify deteriorated paint.
(b) Paint repair and cleanup. The owner shall repair each
deteriorated paint surface and conduct cleanup of the worksite, in
accordance with part 37, subpart D, of this subtitle, within 30 days of
notification of the results of the visual evaluation.
Sec. 36.302 EBL child.
(a) Risk assessment and interim controls. If a child less than 6
years of age living in a dwelling unit where the family receives
Federal assistance has an EBL, the owner shall complete a risk
assessment in accordance with part 37, subpart B, of this subtitle
within 15 calendar days of notification of the child's EBL. The owner
shall conduct interim controls of identified lead-based paint hazards
in accordance with part 37, subpart E, of this subtitle, within 15
calendar days from receipt of the risk assessment report. Interim
controls are completed when cleanup and clearance are achieved in
accordance with part 37, subparts H and I, of this subtitle.
(b) Data collection and recordkeeping responsibilities. To the
extent practicable, the HA or the administering agency shall attempt to
obtain annually from the State or local health agency the names and
addresses of children less than age six with identified EBLs. The HA or
the administering agency shall annually match this information with the
names and addresses of families
[[Page 29220]]
receiving Federal assistance under a program described in Sec. 36.290.
If a match occurs, the HA or the administering agency shall require a
risk assessment and interim controls in accordance with Sec. 36.302(a).
PART 37--STANDARDS AND METHODS FOR LEAD-BASED PAINT HAZARD
EVALUATION AND REDUCTION ACTIVITIES IN FEDERALLY OWNED RESIDENTIAL
PROPERTIES AND HOUSING RECEIVING FEDERAL ASSISTANCE
Subpart A--General Requirements
Sec.
37.1 Purpose and applicability
37.2 Definitions.
37.4 Reference.
37.6 Laboratory analysis.
Subpart B--Risk Assessment
37.10 Unit selection.
37.12 Requirements for risk assessments.
37.14 Requirements for testing paint for a risk assessment.
37.16 Requirements for dust testing.
37.18 Requirements for testing potential soil hazards.
Subpart C--Paint Inspection
37.30 Paint inspection methods.
37.32 Paint inspection of single-family and small multifamily
residential properties.
37.34 Paint inspection of multifamily property.
37.36 Paint inspection report.
Subpart D--Paint Repair
37.50 Requirements.
Subpart E--Interim Controls
37.60 Purpose and applicability.
37.62 Supervision of interim control workers.
37.64 General requirements.
37.66 Requirements for paint stabilization controls.
37.68 Requirements for friction and impact surface interim
controls.
37.70 Requirements for lead-contaminated dust control.
37.72 Requirements for lead-contaminated bare soil interim
controls.
Subpart F--Abatement
37.80 Requirements for abatement of lead-based paint or lead-based
paint hazards.
37.82 Soil abatement.
Subpart G--Occupant Protection and Worksite Preparation
37.90 Purpose and applicability.
37.92 Requirements for occupant protection.
37.94 Worksite preparation.
Subpart H--Cleanup
37.110 Purpose and applicability.
37.112 Requirements for daily cleanup.
37.114 Requirements for final cleanup.
Subpart I--Clearance
37.120 Purpose and applicability.
37.122 General requirements.
37.124 Unit selection.
37.126 Requirements for visual examination.
37.128 Requirements for dust testing.
37.130 Required actions for dwelling units and common areas that
fail dust tests.
37.132 Requirements for soil testing.
37.134 Required actions for properties that fail soil tests.
Subpart J--Monitoring
37.140 Exemptions.
37.142 General requirements.
37.144 Visual survey.
37.146 Reevaluation.
Authority: 42 U.S.C. 3535(d) and 4822.
Subpart A--General Requirements
Sec. 37.1 Purpose and applicability.
(a) This part provides standards and methods for lead-based paint
activities required in part 36 of this subtitle.
(b) Paint inspection, risk assessment, and abatement activities,
including clearance examinations, shall be performed by paint
inspectors, risk assessors and abatement supervisors and workers
certified in accordance with EPA regulations at 40 CFR 745.226
(implementing sections 402 and 404 of TSCA (as amended by section 1021
of the Lead-Based Paint Hazard Reduction Act of 1992, 15 U.S.C. 2681 et
seq.). When paint inspectors, risk assessors and abatement supervisors
and workers are not certified in accordance with 40 CFR 745.226, the
applicable requirements set forth in this part 37 shall apply. The
Secretary may also establish temporary qualifications for paint
inspectors, risk assessors, and abatement supervisors and workers, if
it is determined that the number of certified personnel is
insufficient. With respect to the standards and methods for lead-based
paint hazard evaluation and reduction activities that are not included
in 40 CFR 745.226, the applicable requirements set forth in this part
37 shall apply.
Sec. 37.2 Definitions.
Definitions of terms used in this part are found in Sec. 36.3 of
this subtitle.
Sec. 37.4 Reference.
Further information regarding lead-based paint hazard evaluation
and reduction activities described in this part 37 is contained in the
HUD Guidelines for the Evaluation and Control of Lead-Based Paint
Hazards in Housing (June 1995). For information on obtaining copies of
these guidelines, contact HUD's Office of Lead-Based Paint Abatement
and Poisoning Prevention, 451 Seventh Street, SW, Room B-133,
Washington, DC 20410.
Sec. 37.6 Laboratory analysis.
All laboratories performing analyses of lead in paint, dust, and
soil under these regulations shall be accredited by the U.S.
Environmental Protection Agency's National Lead Laboratory
Accreditation Program (NLLAP). Paint samples must be analyzed in
accordance with the requirements of the Environmental Lead Proficiency
Analytical Testing Program (ELPAT).
Subpart B--Risk Assessment
Sec. 37.10 Unit selection.
(a) Risk assessments of five or more similar dwelling units. (1)
For risk assessments involving five or more similar dwelling units, the
risk assessor may perform the risk assessment using a sample of
dwelling units. The units in the sample shall be selected in accordance
with:
(i) The targeted sampling requirements established by this section;
or
(ii) The random sampling requirements established in subpart C of
this part.
(2) Any common areas servicing the dwelling units in the sample
shall be evaluated in the risk assessment, as well as the surrounding
land belonging to the residential property owner.
(3) Any dwelling unit occupied by a child with an elevated blood
level shall be excluded from the minimum number of units to be sampled
unless units occupied by an EBL child are needed to make up the
necessary unit sample size. All units occupied by an EBL child must be
investigated in accordance with the requirements of part 36 of this
subtitle.
(b) Risk assessments of less than five dwelling units or of 5 or
more dwelling units that are not similar. For risk assessments of less
than 5 dwelling units or of five or more dwelling units that are not
similar, the risk assessment shall evaluate each dwelling unit, any
common areas, and any surrounding land belonging to the owner.
(c) Targeted samples. To obtain a targeted sample of dwelling
units, individual units shall be selected in accordance with the
following procedures:
(1) Determine the minimum number of dwelling units to be sampled
according to Table 1--Minimum Number of Targeted Dwelling Units to
Sample Among Similar Dwelling Units.
(2) Rank dwelling units by the following criteria which are listed
in order of priority:
(i) Dwelling units cited for housing or building code violations
within the past year.
[[Page 29221]]
(ii) Dwelling units that the owner designates are in poor
condition.
(iii) Dwelling units that contain two or more children between the
ages of six months and 6 years with preference given to dwelling units
housing the largest number of children.
(iv) Dwelling units that serve as day care facilities.
(v) Dwelling units prepared for reoccupancy within the past three
months.
(3) Select dwelling units to meet as many of the criteria as
possible.
(i) The risk assessor shall select at least one but not more than
four dwelling units that have recently been prepared for reoccupancy,
if possible.
(ii) If additional dwelling units are required to meet the minimum
sampling number, the risk assessor shall select them randomly.
(iii) If there are many dwelling units that satisfy the same
criteria, those with the largest number of children of less than 6
years of age shall be selected.
Table 1.--Minimum Number of Targeted Dwelling Units to Sample Among
Similar Dwelling Units *
------------------------------------------------------------------------
Number of similar Number of dwelling units to
dwelling units sample
-----------------------------------------------
1-4............... All.
15-20............. 4 units or 50% (whichever
is greater).**
21-75............. 10 units or 20% (whichever
is greater).**
76-125............ 17.
126-175........... 19.
176-225........... 20.
226-300........... 21.
301-400........... 22.
401-500........... 23.
501+.............. 24 + 1 for each additional
increment of 100 dwelling
units or less.
------------------------------------------------------------------------
* Does not include dwelling units with EBL children.
** For percentages, round up to determine number of dwelling units to be
sampled.
Sec. 37.12 Requirements for risk assessments.
(a) General. (1) Risk assessments shall be conducted in accordance
with procedures described in this section. The objectives of a risk
assessment are to:
(i) Identify and report on the existence, nature, severity, source,
and location of lead-based paint hazards or document that no such
hazards have been identified; and
(ii) Identify and report acceptable methods for controlling lead-
based paint hazards that are identified, including interim control and
abatement measures.
(2) The scope of the risk assessment shall include the worksite,
and dwelling units and common areas selected in accordance with
Sec. 37.10.
(b) Visual assessment. The risk assessor shall perform a visual
assessment of the selected dwelling units, common areas, exterior
building surfaces and any surrounding land belonging to the owner to
identify potential lead-based paint hazards, as follows:
(1) If prior paint inspection reports are available, risk assessors
shall consider whether the past paint inspection conformed to current
standards. If the prior paint inspection is determined to be reliable
and complete, the risk assessor is only required to visually assess
surfaces that have been determined to contain lead-based paint. If a
paint inspection has not been completed or if the risk assessor
determines that the paint inspection report is or may be unreliable,
painted surfaces shall be assumed to contain lead-based paint unless
tests performed in accordance with the requirements of Sec. 37.14 show
that the paint's lead concentration does not exceed the applicable
standards.
(2) The risk assessor shall identify any deteriorated paint
surfaces and assess the extent of the deterioration. Based on the
extent of the deterioration observed, the risk assessor shall rate the
paint film condition of each deteriorated surface as intact, fair, or
poor using the standards presented in Table 2: Categories of Paint Film
Condition.
Table 2.--Categories of Paint Film Condition
----------------------------------------------------------------------------------------------------------------
Size of affected surface area
Type of building component* -----------------------------------------------------------------------------
Intact Fair Poor
----------------------------------------------------------------------------------------------------------------
Exterior components with large Entire surface is Less than or equal to 10 More than 10 square feet
surface areas. intact. square feet nonintact. nonintact.
Interior components with large Entire surface is Less than or equal to 2 More than 2 square feet
surface areas (walls, ceilings, intact. square feet nonintact. nonintact.
floors, doors).
Interior and exterior components Entire surface is Less than or equal to 10 More than 10 percent of
with small surface areas (window intact. percent of the total the total surface area
sills, baseboards, soffits, trim). surface area of the of the component
component nonintact. nonintact.
----------------------------------------------------------------------------------------------------------------
*Building component in this table refers to each individual component or side of building, not the combined
surface area of all similar components in a room (e.g., a wall with one square foot of deteriorated paint is
in ``fair'' condition, even if the other 3 walls in a room have no deteriorated paint).
(3) The risk assessor shall identify any painted surfaces where the
component has been chewed or mouthed by a child. Painted surfaces where
there is clear evidence of teeth marks or that are identified by
residents as having been chewed or mouthed by children are examples of
such evidence.
(4) The risk assessor shall identify any painted surfaces that are
subject to friction or impact such as windows, doors, stair treads, or
floors.
(5) The risk assessor shall identify potential soil hazards on the
residential property. Potential soil hazards are:
(i) Any large soil in play areas, including sand boxes; and
(ii) Bare soil in areas other than play areas (such as soil along
the building foundation or drip line, vegetable gardens, pet sleeping
areas, bare dirt pathways) that totals more than 9 square feet per
property.
[[Page 29222]]
(6) The risk assessor shall examine buildings and the worksite for
structural deficiencies or conditions that contribute to observed paint
deterioration and other potential lead-based paint hazards.
Deterioration in the roof that results in water leaks is an example.
(c) Evaluation of potential lead-based paint hazards. (1) The risk
assessor shall determine if deteriorated paint surfaces in poor
condition and chewed paint surfaces identified during the visual
assessment are lead-based paint hazards.
(i) Such surfaces known or assumed to contain lead-based paint
shall be considered lead-based paint hazards, except that intact
factory applied prime coatings on metal surfaces shall not be
considered lead-based paint hazards.
(ii) Such surfaces tested in accordance with the requirements of
Sec. 37.14 that have a lead concentration equal to or exceeding 1.0 mg/
cm2 (one milligram per square centimeter) or 0.5 percent by weight
(5000 parts per million) shall be considered lead-based paint hazards.
(iii) Surfaces in fair condition do not constitute lead-based paint
hazards, but may become hazardous in the future. Risk assessors shall
recommend that such surfaces be repaired.
(2) Dust tests of all selected dwelling units and common areas
shall be performed in accordance with Sec. 37.16 to determine if lead-
contaminated dust is present. If either the single surface or composite
test results for any room, room equivalent, unit, or common area exceed
the following standards, a lead-based paint hazard exists in that room,
room equivalent, dwelling unit or common area due to the presence of
lead-contaminated dust:
(i) Hard floors--100 ug/ft.\2\ (micrograms of lead per square
foot).
(ii) Carpeted floors--100 ug/ft.\2\ (micrograms of lead per square
foot).
(iii) Interior window sills--500 ug/ft.\2\ (micrograms of lead per
square foot).
(3) If a potential soil hazard is identified during a visual
assessment of the worksite, soil tests shall be performed in accordance
with Sec. 37.18. If the test results exceed the following standards,
the bare soil in these areas shall be considered lead-contaminated:
(i) 400 ug/g (micrograms of lead per gram of soil) in play areas
and sand boxes.
(ii) 2,000 ug/g (micrograms of lead per gram of soil) in other
areas.
(d) Evaluation of potential lead-based paint hazards when targeted
sampling of units is used. (1) If a targeted sampling of dwelling units
was used to evaluate paint, the results of the paint evaluation shall
be analyzed by component and location, as follows:
(i) If all sampled components at a given location (for example, all
hallway baseboards or all bathroom walls) exceed the standard or all
are below the standard, the risk assessor shall conclude that this
condition is true for the total population of similar dwelling units,
common areas, and exterior surfaces.
(ii) If a component contains lead-based paint in some dwelling
units and not in others, the risk assessor shall conclude that all
similar components constitute a hazard, unless a paint inspection is
completed in every dwelling unit, common area, or exterior surface, in
accordance with the requirements of subpart C of this part.
(2) If targeted sampling was used to evaluate dust, the risk
assessor shall calculate the arithmetic mean of the results for each
type of component (floors and window sills) by room type. If the mean
dust level for a component in the targeted dwelling units exceeds the
standard all of the components represented by the sample constitute a
hazard in all dwelling units except those components with negative
results. If the mean is below the standard, but some of the individual
sample results exceed the standard, only those individual surfaces
constitute a hazard, and the risk assessor shall use professional
judgment to determine if additional testing is necessary for those
components in the untested units of the sample.
(e) Identify acceptable lead hazard control options. Using
information on existing hazards and the condition of the building, the
risk assessor shall identify acceptable lead-based paint hazard control
methods.
(f) Report. The risk assessor shall prepare a final report
documenting the findings of the risk assessment in accordance with the
requirements of 40 CFR part 745.228.
Sec. 37.14 Requirements for testing paint for a risk assessment.
(a) General. Deteriorated paint in poor condition or chewed
surfaces in a dwelling unit or a common area shall be tested according
to the following procedures. Paint testing is optional for intact paint
on friction and impact surfaces; it is not required:
(b) X-ray fluorescence (XRF) testing. An XRF analyzer may be used
to test the lead concentration of a painted surface, unless the surface
is not suitable for this method of analysis. The use of an XRF analyzer
to test a painted surface shall be performed in accordance with the
requirements of subpart C of this part.
(c) Testing of paint chip samples. A surface may also be tested for
lead-based paint by laboratory analysis of paint chip samples in
accordance with the following requirements. Paint chip samples must be
collected after dust sampling is completed to minimize the possibility
of cross sample contamination.
(1) One paint chip sample shall be collected in each sampled
dwelling unit to represent each component with deteriorated or chewed
surfaces, both interior and exterior.
(2) Composite sampling of paint chips is permitted as follows, but
compositing shall not occur across different components:
(i) No more than five subsamples shall be used.
(ii) Each sample shall be composited in the laboratory.
(iii) The lead-based paint standard shall be divided by the number
of subsamples contained in the composite sample to determine if any
subsample could exceed the standard.
Sec. 37.16 Requirements for dust testing.
(a) General. Risk assessors and others required to conduct dust
testing shall test for lead-contaminated dust in dwelling units and
common areas in accordance with the procedures described in this
section.
(b) Number and location of dust samples within dwelling units. (1)
Dust testing within dwelling units shall be conducted by collecting
either composite or single-surface wipe samples.
(2) The same room/component combination shall not be sampled twice.
For example, if the principal play area (identified pursuant to
Sec. 37.16(b)(3)(ii)) is the kitchen, a substitute must be selected for
the required sample of an interior window sill in the kitchen.
(3) If single-surface dust sampling is used, a minimum number of
six locations per dwelling unit shall be sampled, three floors and
three interior window sills from the following specific locations:
(i) The floor and an interior window sill of the bedroom of the
youngest child six months of age or more. If there are no children
living in the dwelling unit or if the dwelling unit is vacant, the
samples shall be collected from the room that would likely be the
bedroom of the youngest child six months of age or more (usually the
smallest bedroom).
(ii) The floor and an interior window sill of the principal play
area of the youngest child six months of age or more other than his or
her bedroom. If there are no children living in the dwelling unit or if
the dwelling unit is
[[Page 29223]]
vacant, the samples shall be collected from the room that would likely
be the play room of the youngest child six months of age or more. If
there is no window in the sampled play room, a sample shall be
collected from the interior window sill of another room that would
likely be frequented by the youngest child six months of age or more.
(iii) The floor of the principal entryway. If the principal
entryway is not distinguishable from the sampled play area or the
sampled bedroom, the sample shall be collected from the floor of
another high-traffic area (such as the living room, family room, TV
room, dining area, or kitchen) that is distinguishable from the sampled
play room or the sampled bedroom.
(iv) An interior window sill sample from the kitchen. If there is
no window in the kitchen, the sample shall be collected from an
interior window sill in the dining area or another room likely to be
frequented by the youngest child six months of age or more.
(4) If composite sampling is used, a minimum number of eight
locations per dwelling unit shall be sampled, four floors and four
interior window sills. The location of six of these samples shall be
determined in accordance with the requirements of paragraph (b)(3) of
this section. The other two samples shall be collected from the floor
and an interior window sill of the bedroom of the next oldest child six
months of age or more.
(c) Number and location of dust samples in common areas. Dust
samples shall be collected from the following locations in common
areas:
(1) In multifamily buildings of four stories or less, one sample
from the entry area floor and one from the floor of the first landing
of a common stairway or from the first floor hallway. If there is a
hallway window that is frequently used, the risk assessor shall collect
a sample from the interior window sill and substitute this sample for
the floor sample from the first landing or hallway.
(2) In multifamily buildings higher than four stories, one sample
each from the hallway of every fourth floor and one each from the
stairways between every fourth floor.
(3) In on-site community buildings, day care centers, or other
buildings frequented by children, dust sampling shall be completed in
accordance with the following:
(i) For spaces up to 2000 square feet, collect two dust samples
from widely separated locations in high traffic areas used by or
accessible to children, and one dust sample from an interior window
sill.
(ii) For spaces over 2000 square feet, collect one additional floor
sample for each increment of 2000 square feet, and one additional
sample of an interior window sill for each additional increment of 2000
square feet.
(iii) In the building's management office, one dust sample shall be
collected from the floor of the resident waiting area; two dust samples
shall be collected if the area is more than 400 square feet.
(d) Selection of specific sampling locations on floors and interior
window sills. Specific dust sampling locations shall be determined as
follows:
(1) Floors: Select hard floor surfaces that are reasonably
accessible. If hard floor surfaces are not available, select carpeted
surfaces. If there are friction or impact surfaces in the room select a
floor location near the friction or impact surface that is most likely
to be generating lead contaminated dust. If there are no friction or
impact surfaces but there is visible floor dust, select one or more
dusty locations accessible to children if 6 to 59 months of age. If
none of these conditions are present, select the highest traffic area
in the room.
(2) Interior window sills: Select windows that are frequently
opened especially those most frequently contacted by children. If
children's use patterns are unknown, select windows that have friction
surfaces. If none of these conditions are present, select randomly.
(3) Common areas: Select floor locations in a high traffic area and
window sill locations at windows that are frequently operated.
(e) Sample collection procedure. (1) Additional information
concerning these procedures is contained in the HUD Guidelines.
(2) Wet wipes shall be used to collect all dust samples.
(3) If composite sampling is used, samples shall be composited
according to the following requirements:
(i) Separate composite samples are required from each different
type of component sampled. For example, subsamples from both floors and
window sills shall not be combined into a single composite sample.
Subsamples from both carpeted and hard floors may be combined in a
single sample.
(ii) Separate composite samples are required for each dwelling
unit.
(iii) The surface areas of subsamples shall be the same size.
(iv) The same dust wipe shall not be used to sample two different
locations.
(v) A maximum of four dust wipe subsamples shall be placed in a
single container for a composite sample.
(4) One blank dust wipe sample must be sent to the laboratory for
every 25 dust wipe samples, or less if fewer than 25 dust wipe samples
are used. If composite samples are used, the blank dust wipe sample
shall consist of four dust wipe samples inserted into a single
container. For single surface samples one blank dust wipe sample shall
be inserted into the container. Spiked field samples are not required.
(5) All samples shall be submitted to an EPA recognized laboratory
for analysis.
Sec. 37.18 Requirements for testing potential soil hazards.
(a) General. The risk assessor and others required to conduct soil
testing shall collect and submit samples of bare soil in the yard.
Except for play areas, sampling is not required unless other bare soil
areas total more than 9 square feet.
(b) Selecting areas to sample. One composite sample shall be
collected from the child's principal play area if it exists and one
composite sample from the front or back yard and/or a sample from along
the foundation drip line.
(c) Sampling procedures. The risk assessor and others required to
conduct soil testing shall use the following procedures to collect the
soil samples:
(1) Each sample shall consist of equal soil subsamples taken from
the top one-half inch (1 centimeter) of soil at three to ten locations
equidistant from each other. For samples taken from along the
foundation, subsamples shall be collected 2 to 6 feet from each other.
(2) The yard and the foundation drip line subsample may be combined
into a single composite sample, but the subsamples from the principal
play area shall be composited as a single sample.
(3) If paint chips are present in the soil they shall be included
as part of the soil sample.
Subpart C--Paint Inspection
Sec. 37.30 Paint inspection methods.
The lead content of paint on components being inspected shall be
tested by using portable X-ray fluorescence analyzer (XRF), in
combination with:
(a) Laboratory analysis of paint chip samples in accordance with
the requirements of Sec. 37.6; or
(b) Other methods approved by the Secretary.
[[Page 29224]]
Sec. 37.32 Paint inspection of single-family and small multifamily
residential properties.
The following requirements shall apply to paint inspections of
single-family and multifamily residential properties of fewer than 20
units.
(a) Paint inspections shall be performed on all testing
combinations on the residential property that are coated with paint,
varnish, shellac, stain, or other coating, including those that have
been coated and covered with wallpaper, except components known to have
been replaced after 1980. Limited paint inspections shall be performed
in accordance with the requirements of this subpart on all testing
combinations to be disturbed during rehabilitation activities. Examples
of testing combinations are shown in the chart at the end of this
paragraph.
Examples of a Few Testing Combinations
----------------------------------------------------------------------------------------------------------------
Room equivalent Component Substrate Color
----------------------------------------------------------------------------------------------------------------
Bedroom....................... Door........................ Wood....................... Brown.
Kitchen....................... Wall........................ Plaster.................... Green.
Garage........................ Floor....................... Concrete................... Red on black.
West side of house............ Siding...................... Wood....................... White.
Exterior area playground...... Swing set................... Metal...................... Orange.
----------------------------------------------------------------------------------------------------------------
(b) XRF Testing protocol. (1) XRF testing shall be accomplished
according to the instrument manufacturer's instructions and shall
include quality control procedures, except that substrate corrections
inconclusive ranges and calibration shall be made in accordance with
the HUD/EPA Performance Characteristics Sheet for the XRF model being
used.
(2) Paint inspections shall include the analysis of each testing
combination on the residential property. One XRF reading shall be taken
at three different test locations on each testing combination. The test
locations shall be representative of the testing combination including
all layers of paint, and be a sufficient distance from pipes or
electrical outlets to avoid interference. If testing combinations are
replicated, (i.e. three windows in the same room) the selection of test
locations shall include a location on up to three replicates. If
acceptable test locations cannot be found for XRF testing, a paint chip
sample shall be collected for laboratory analysis.
(3) An average of the three readings taken on different parts of
the component shall be computed for each testing combination. That
average, corrected for substrate interference if necessary, shall
determine the classification of the testing combination as positive,
negative, or inconclusive regarding the presence of lead-based paint.
The positive, negative, and inconclusive ranges for XRF testing shall
be determined based on the HUD/EPA Performance Characteristics Sheets
of the model of XRF being used.
(4) A paint chip sample shall be collected for laboratory analysis
from all testing combinations that test inconclusive.
(5) Test results of 1.0 milligram of lead per square centimeter (
1.0 mg/cm\2\) or greater or 0.5 percent of lead by weight or greater
shall be considered positive. All other results shall be considered
negative.
Sec. 37.34 Paint inspection of multifamily property.
(a) In a multifamily property of less than 20 units all units must
be inspected in accordance with the requirements of Sec. 37.2. In a
multifamily property of 20 or more units, a random sample of units
shall be inspected in accordance with the following table:
Number of Units to be Inspected in a Multifamily Property
------------------------------------------------------------------------
Number of units in building or group of
similar buildings Number of units to be tested
------------------------------------------------------------------------
20-26.................................. 20
27..................................... 21
28..................................... 22
29-30.................................. 23
31..................................... 24
32..................................... 25
33-34.................................. 26
35..................................... 27
36..................................... 28
37..................................... 29
38-39.................................. 30
40-50.................................. 31
51..................................... 32
52-53.................................. 33
54..................................... 34
55-56.................................. 35
57-58.................................. 36
59..................................... 37
60-73.................................. 38
74-75.................................. 39
76-77.................................. 40
78-79.................................. 41
80-95.................................. 42
96-97.................................. 43
98-99.................................. 44
100-117................................ 45
118-119................................ 46
120-138................................ 47
139-157................................ 48
158-177................................ 49
178-197................................ 50
198-218................................ 51
219-258................................ 52
259-299................................ 53
300-379................................ 54
380-499................................ 55
500-776................................ 56
777-1004............................... 57
1005-1022.............................. 58
1023-1039.............................. 59
1040 or more........................... 5.8 percent of
the units.
------------------------------------------------------------------------
(b) Paint inspections shall be completed on testing combinations in
the selected units in accordance with the requirements of Sec. 37.32(c)
except that only one XRF reading is required on each testing
combination as long as a minimum of 40 readings per testing combination
will be obtained in each development. Each common area accessible to
children less than 6 years of age, (i.e. lobby, laundry room) is
considered a room equivalent and shall be tested.
(c) A minimum of 40 components, if possible, of a given type shall
be tested within the total of all of the multifamily dwelling units
being tested.
(d) Test results. Lead-based paint is considered to be present
throughout the development on a given component if 15 percent or more
of the tested components are positive. Lead-based paint is not present
if 100 percent of the tested components are negative or if 100 percent
of the tested components are either negative or, if in the inconclusive
range, below 1.0 mg/cm \2\. All other cases require confirmatory
laboratory testing. If any laboratory results are 1.0 mg/cm \2\ or
greater or 0.5 percent by weight or greater a positive result is
indicated. Test results below these standards are negative. If less
than 1
[[Page 29225]]
percent of similar components are positive, the results shall be
negative for that component. In this case, the few components that are
positive shall be monitored and/or controlled. If laboratory test
results conflict with XRF results, the laboratory test results shall be
used.
Sec. 37.36 Paint inspection report.
A written paint inspection report shall be provided to the owner in
accordance with the requirements of 40 CFR 745.228.
Subpart D--Paint Repair
Sec. 37.50 Requirements.
(a) De minimis level. Paint repair is required if the area of the
deteriorated paint surface is more than:
(1) Ten square feet on an exterior wall;
(2) Two square feet on a component with a large surface area other
than an exterior wall including, but not limited to, interior walls,
ceilings, floors and doors; or
(3) Ten 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.
(b) Protective coverings. Before starting paint repair, protective
coverings shall generally extend a minimum of 5 feet out in all
directions from the surfaces being worked on to protect the floor or
ground from contamination.
(c) Occupant protection. If units are occupied while undergoing
paint repair, occupants and their belongings shall be protected from
lead-based paint hazards associated with paint repair. Occupant
relocation is not required. Occupants must not enter spaces undergoing
paint repair until cleanup is completed. Personal belongings that are
in work areas must be relocated or otherwise protected from
contamination. During interior paint repair involving more than 2
square feet of deteriorated paint in a room, dust must be contained to
the room or work area by installing an airlock flap or comparable
device. To avoid temporary relocation, an individual or firm conducting
paint repair shall ensure that occupants have safe uncontaminated
access to sleeping areas, bathroom and kitchen facilities, and
entryways after work hours. Work areas shall be secured against entry
during non working hours.
(d) Surface preparation. Before repainting deteriorated paint
surfaces, all loose paint and other material shall be removed from the
surfaces to be treated, as follows:
(1) Acceptable methods for preparing the surface include wet
scraping, and wet sanding. Dry scraping or manual or power sanding are
acceptable if performed in conjunction with a HEPA vacuum filter
attachment to the tool operated according to the manufacturer's
instructions.
(2) Dry scraping/sanding unassisted with HEPA shall be used only
when wet scraping/sanding cannot be performed safely, such as when
preparing surfaces near electrical circuits.
(3) Before repainting the prepared surface, it shall be cleaned to
remove dust, paint chips, and surface contaminants that may prevent
proper adhesion of paint coatings.
(e) Prohibited methods of paint removal. The paint removal methods
specified in Sec. 37.80(b) shall not be used to remove paint known or
suspected to be lead-based paint. All paint that has not been tested
must be assumed to be lead-based paint.
(f) Repainting. Paint repair shall include the application of new
paint. All paint shall be applied in accordance with the manufacturer's
recommendations.
(g) Modified Cleanup. (1) General. Modified cleanup is acceptable
in units where only paint repair has occurred, and shall not begin
until one hour after paint repair has been completed.
(2) Required practices. Modified cleanup shall include the
following practices:
(i) The protective coverings shall be carefully removed to control
the spread of dust;
(ii) All hard, interior uncarpeted surfaces in the area of the
repair shall be wet washed with a lead specific detergent or
equivalent. Floors within at least 10 feet of the repaired surface
shall be wet washed. For all other surfaces to be cleaned, wet washing
must generally extend a minimum of 5 feet in all directions from the
repaired surface and shall include walls, window sills and other
horizontal surfaces excluding ceilings, unless they have been repaired.
Cleanup of adjacent rooms is not required, except where paint repair
has occurred at or near door openings to those rooms; and
(iii) If the floor is carpeted it shall be cleaned with a HEPA
vacuum equipped with a beater-bar, if available. If a HEPA vacuum is
not available, a standard vacuum cleaner shall be used with a high
efficiency filter bag, if available.
(h) Waste handling. Waste from paint repair shall be enclosed in a
way that will prevent recontamination of the interior or exterior of
the residential property.
Subpart E--Interim Controls
Sec. 37.60 Purpose and applicability.
Interim control measures include paint stabilization, treatments
for friction and impact surfaces, dust control, and lead-contaminated
soil control. Interim controls may be performed in combination with
more extensive, permanent abatement methods.
Sec. 37.62 Supervision of interim control workers.
Workers performing interim control treatments shall be trained in
accordance with 29 CFR 1926.59 and supervised by an abatement
supervisor certified in accordance with 40 CFR 745.226. The Secretary
may establish temporary alternative qualifications for interim control
supervisors if it is determined that the supply of certified abatement
supervisors is insufficient.
Sec. 37.64 General requirements.
(a) Acceptable methods identified by risk assessor. If a risk
assessment has been performed, only those interim control methods
identified as acceptable methods in the risk assessment report shall be
used to control identified hazards.
(b) Prohibit methods of paint removal. The paint removal methods
specified in Sec. 37.80(b) shall not be used.
(c) Occupant protection. Occupants of dwelling units where interim
controls are being performed shall be protected during the course of
the work in accordance with the requirements of subpart G of this part.
Sec. 37.66 Requirements for paint stabilization controls.
(a) General. Interim control treatments used to stabilize
deteriorated lead-based paint on surfaces other than friction or impact
surfaces 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 required by these
regulations.
(b) De minimis level. Interim controls are required if the area of
the deteriorated paint surface is more than:
(1) Ten square feet on an exterior wall;
(2) Two square feet on a component with a large surface area other
than an exterior wall including, but not limited to, interior walls,
ceilings, floors and doors; or
(3) Ten percent of the total surface area on an interior or
exterior component with a small surface area
[[Page 29226]]
including, but not limited to, window sills, baseboards and trim.
(c) Repair substrate. Physical defects in the substrate or
component that threaten the integrity of the stabilization treatment
shall be permanently repaired, as follows, prior to treating the
surface. Examples of defective substrate conditions include: dry-rot,
rust moisture, crumbling plaster, missing hardware, and siding or other
components that are not securely fastened:
(1) If a current risk assessment or paint inspection has been
performed, all physical defects in the substrate of surfaces with
deteriorated lead-based paint that are listed in the risk assessment
report shall be repaired.
(2) If no information on lead content is available, all readily
observable substrate defects in surfaces with deteriorated paint shall
be corrected.
(d) Surface preparation. (1) Before recoating deteriorated paint,
all loose paint and other 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 vacuum filter attachment operated according to
manufacturer's instructions.
(2) Dry scraping/sanding shall be used only when wet scraping/
sanding cannot be performed safely, such as when preparing surfaces
near electrical circuits.
(e) Surface cleaning. Before applying protective coatings to the
prepared surface, the surface shall be cleaned to remove dust, paint
chips, and surface contaminants that may prevent proper adhesion of
coatings. Any paint remaining on the surface shall be deglossed if
necessary to ensure proper adhesion of coatings.
(f) Coating the deteriorated paint. Paint stabilization shall
include the application of a new protective coating. The surface
substrate shall be dry and protected from future moisture damage prior
to application of a protective coating. All protective coatings shall
be applied in accordance with the manufacturer's recommendations.
Sec. 37.68 Requirements for friction and impact surface interim
controls.
(a) General. Interim control treatments used to control lead-based
paint on friction or impact surfaces shall be performed in accordance
with the requirements of this section.
(b) Affected components. Building components that may contain
friction or impact surfaces include the following: window systems;
doors; stair treads and risers; baseboards and outside corners; drawers
and cabinets; and porches, decks, interior floors, and any other
painted surfaces that are abraded, rubbed, or impacted.
(c) Treatments for friction surfaces. Interim control treatments
for friction surfaces with lead-based paint shall eliminate friction
points or treat the friction surface so that lead-based 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. Lead-based 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, sheet flooring and some
encapsulants.
(d) Treatments for impact surfaces. (1) Interim control treatments
for impact surfaces with lead-based paint shall protect the lead-based
paint on the surface from impact. Acceptable methods include:
(i) Treatments that eliminate impact with the lead-based paint
surface, such as a door stop to prevent a door from striking a wall or
baseboard covered with lead-based paint.
(ii) Treatments that cover the lead-based paint surface with a
material that protects the paint from impact, such as installing
plastic corner strips or corner beads to protect an outside corner
covered by lead-based paint from impact.
(2) Covering an impact surface with a coating or other treatment
that fails to protect lead-based paint from impact or abrasion, such as
painting over the surface, shall not constitute an interim control for
impact or friction surfaces.
Sec. 37.70 Requirements for lead-contaminated dust control.
(a) General. Interim control treatments used to control lead-
contaminated dust shall be performed in accordance with the
requirements of this section. If a risk assessment was performed, dust
control shall be accomplished in locations specified for dust removal
in the risk assessment report. If no risk assessment was performed,
dust control shall be accomplished in rooms, dwelling units, or common
areas assumed to have lead-contaminated dust.
(b) Surfaces to be cleaned. Dust control shall involve a thorough
cleaning of all horizontal surfaces in the affected room, dwelling
unit, or common area.
(c) HEPA vacuuming. Horizontal surfaces in the dust removal area
shall be cleaned by first HEPA vacuuming these surfaces until surface
dust is no longer visible.
(d) Wet cleaning. After all horizontal surfaces in the dust removal
area have been HEPA vacuumed, all hard horizontal surfaces shall be wet
cleaned with a lead-specific detergent solution or equivalent.
(e) Surfaces covered by carpeting or rugs. (1) The floor surface
under rugs and carpeting shall be HEPA vacuumed where feasible.
(2) Rugs and unattached carpets located in areas of the dwelling
unit with lead-contaminated floor dust shall be HEPA vacuumed on both
sides. If rugs or carpets will be removed from the dwelling for off-
site cleaning, workers shall take protective measures to prevent the
spread of dust during the removal of these materials. For example,
rugs, carpets, and padding can be misted to reduce dust generation
during removal and the items being removed can be wrapped and sealed
before removal from the work area.
(3) Attached carpets that are identified as hazards shall be HEPA
vacuumed, cleaned, or replaced. Floors under such carpets are not
required to be vacuumed.
(f) Work practices. Dust removal shall begin on the horizontal
surfaces in the top rear room in the dwelling or common area and
proceed forward and down through the work area.
Sec. 37.72 Requirements for lead-contaminated bare soil interim
controls.
(a) General. Interim control treatments of lead-contaminated soil
shall be performed in accordance with the requirements of this section:
(1) Interim control treatments shall be used only to control lead-
contaminated bare soil that does not contain a lead concentration
greater than 5,000 ug/g (micrograms per gram). In children's play areas
interim controls are the minimum requirement for soil lead
concentrations from 400 to 5000 ug/g. In other areas interim controls
are the minimum requirement for soil lead concentrations from 2000 to
5000 ug/g.
(2) Soil with a lead concentration greater than 5,000 ug/g of lead
shall be abated in accordance with the requirements of subpart F of
this part.
(b) Acceptable interim control methods for lead-contaminated soil
are impermanent surface coverings and land use controls.
(c) Impermanent surface coverings. Impermanent surface coverings
may be used to treat lead-contaminated soil if applied in accordance
with the following requirements. Examples of acceptable impermanent
coverings
[[Page 29227]]
include gravel, bark, sod, and artificial turf:
(1) If the area to be treated is heavily traveled, impermanent
surface coverings that are not designed to withstand heavy traffic,
such as grass, shall not be used.
(2) Coverings such as bark or gravel shall be applied in a
thickness not less than six inches.
(3) The covering material shall not contain more than 200 ug/g
(micrograms per gram) of lead.
(4) Adequate controls to prevent erosion shall be used in
conjunction with impermanent coverings.
(d) Land use controls. (1) Land use controls may be used to reduce
exposure to lead-contaminated soil by effectively preventing
uncontrolled access to areas with lead-contaminated soil. Examples of
land use controls include: fencing, warning signs, and landscaping.
(2) Land use controls shall be implemented only if residents have
reasonable alternatives to using the area to be restricted.
(3) 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.
Subpart F--Abatement
Sec. 37.80 Requirements for abatement of lead-based paint or lead-
based paint hazards.
(a) General. Abatement shall permanently eliminate, enclose, or
encapsulate any lead-based paint or lead-based paint hazards in
accordance with the requirements of this subpart. Abatement of intact,
factory applied prime coatings on metal surfaces is not required.
Finish coatings on such surfaces shall be abated if required by these
regulations. Acceptable methods of abatement include, but are not
limited to, component replacement, enclosure, removal, and
encapsulation. For the purpose of this subpart permanent means a
minimum effective life of 20 years.
(b) Prohibited methods of paint removal. The following paint
removal methods shall not be used to remove lead-based paint:
(1) Open flame burning or torching;
(2) Machine sanding or grinding without a HEPA exhaust control;
(3) Uncontained hydroblasting or high pressure wash;
(4) Abrasive blasting or sandblasting without HEPA exhaust control;
(5) Heat guns operating above 1100 degrees Fahrenheit;
(6) Chemical paint strippers containing methylene chloride; and
(7) Dry scraping or dry sanding, except in conjunction with heat
guns or around electrical outlets or to remove small amounts of
deteriorated paint. A small amount of deteriorated paint is less than
10 square feet for exterior components with large surface areas (such
as walls), less than 2 square feet for interior components with large
surface areas (such as walls, ceilings, floors, or doors), and less
than 10 percent of the total surface area of interior and exterior
components with small surface areas (such as window sills, baseboards,
and trim).
(c) Encapsulation. Encapsulation treatments used in accordance with
the following requirements constitute an acceptable method of
abatement:
(1) The encapsulating product or system shall be warranted by the
manufacturer to perform for a minimum of 20 years as a durable barrier
between lead-based paint and the environment in the type of application
planned.
(2) Encapsulating products or systems shall be used in a manner
consistent with the manufacturer's recommendations.
(3) Surfaces treated by encapsulation shall be monitored as
required by subpart J of this part.
(4) Any failures of the encapsulant shall be repaired immediately
in accordance with the manufacturer's recommendations.
(d) Occupant protection and worksite preparation. Occupants of
dwelling units where abatement work is being performed shall be
protected during the course of abatement activities in accordance with
the requirements of subpart G of this part.
(e) Cleanup. Cleanup of the work area following the completion of
abatement activities shall be performed in accordance with the
requirements of subpart H of this part.
(f) Clearance. Upon completion of abatement work and cleanup,
clearance testing shall be conducted in accordance with the
requirements of subpart I of this part.
Sec. 37.82 Soil abatement.
Bare soil surrounding a residential property that is determined to
have a lead concentration that exceeds 5,000 ug/g (micrograms per gram)
shall be abated. Acceptable methods of soil abatement include, but are
not limited to, removal and paving.
Subpart G--Occupant Protection and Worksite Preparation
Sec. 37.90 Purpose and applicability.
This subpart establishes procedures for protecting dwelling unit
occupants and the environment from exposure to or contamination from
lead-contaminated materials during lead-based paint hazard reduction
activities. The requirements established by this subpart are applicable
to all lead-based paint hazard reduction activities required by part 36
of this subtitle.
Sec. 37.92 Requirements for occupant protection.
(a) General requirements. Appropriate action shall be taken to
protect occupants from lead-based paint hazards associated with lead-
based paint hazard reduction activities.
(b) Occupant access to worksite. Occupants must not be permitted to
enter the worksite during lead-based paint hazard reduction activities,
unless such occupants are employed in the conduct of the interim
controls or abatement at the worksite. Occupant re-entry into the
worksite is permitted only after lead-based paint hazard reduction work
has been completed and the dwelling unit has passed a clearance
examination performed in accordance with the requirements of subpart I
of this part. Occupants in dwelling units where only paint repair work
has been performed may re-enter after that work and cleanup have been
completed. No clearance examination is required for paint repair.
(c) Occupant relocation requirements. Occupants of a dwelling unit
shall be temporarily relocated during lead-based paint hazard reduction
activities unless the lead-based paint hazard control activities being
performed in the dwelling unit qualify for one of the exceptions
provided in paragraph (d) of this section. The following requirements
apply to occupant relocation:
(1) Occupants shall be relocated before lead-based paint hazard
reduction activities begin.
(2) Occupants shall be relocated to a suitable, decent, safe, and
sanitary dwelling unit that is free of lead-based paint hazards.
(d) Exceptions to occupant relocation requirement. Occupant
relocation is not required during lead-based paint hazard reduction
activities if the work to be performed meets at least one of the
following three exceptions:
(1) Only the exterior of the dwelling unit is treated; and the
following two conditions are met:
(i) Windows, doors, and other openings that are in the vicinity of
the worksite are sealed during hazard control work and cleanup to
prevent lead-contaminated dust from entering the dwelling unit.
(ii) Entry and egress free of lead-contaminated dust and debris is
provided.
[[Page 29228]]
(2) Treatment will not disturb lead-based paint or lead-
contaminated dust; or
(3) Treatment of the interior will be completed within 5 calendar
days, and all of the following conditions are met:
(i) The hazard reduction work area is sealed in a manner that
prevents the release of leaded dust and debris into other areas.
(ii) At the end of the each day of hazard reduction activities, the
area outside the containment area that is within at least 10 feet of
the containment area shall be properly cleaned to remove any lead-
contaminated dust or debris that may be present.
(iii) Occupants have safe access to sleeping areas, bathroom and
kitchen facilities, and entryways after work hours.
(iv) Treatment does not create other safety hazards (i.e. exposed
electrical wiring or holes in the floor).
(v) The work area is secured against entry during non-working hours
until the dwelling unit passes a clearance exam in accordance with
subpart I. When paint repair only is being performed the work area
shall be secured against entry during non-working hours until such work
is complete.
(e) Protection of occupant belongings. Property owners shall
protect tenants' personal belongings from contamination by lead
contaminated dust and debris while lead-based paint hazard reduction
work and cleanup are being performed. Personal belongings shall be
removed from the containment area. Large items that cannot be removed
shall be covered with exposed seams taped shut.
Sec. 37.94 Worksite preparation.
(a) General requirements. The worksite for lead-based paint hazard
reduction activities shall be prepared to prevent the release of lead-
contaminated dust. Worksite preparation shall ensure that lead-
contaminated dust, lead-based paint chips and other debris from hazard
reduction activities are contained within the worksite until they can
be safely removed. The appropriate worksite preparation shall be
determined by a certified risk assessor, a certified abatement
supervisor, or a trained lead-based paint planner/designer. Any of the
seven levels of containment or combination of levels described in the
HUD Guidelines is permissible.
(b) General preparation. (1) Any large debris or loose paint chips
shall be removed from the worksite before the containment area is
constructed.
(2) During the construction of the containment area and the
duration of lead-based paint hazard reduction activities, workers shall
follow practices that minimize the spread of lead contaminated dust and
debris.
(3) Warning signs shall be required at entry to the room where lead
hazard reduction activities are conducted when occupants are present.
Warning signs shall be required at main and secondary entryways to the
building when occupants have been relocated. If exterior lead hazard
reduction activities are conducted warning signs shall be required on
the building and at a 20 foot perimeter around the building (or less if
the distance to the next building or the sidewalk is less than 20
feet).
Subpart H--Cleanup
Sec. 37.110 Purpose and applicability.
This subpart establishes procedures to assure that lead-
contaminated debris and dust resulting from lead-based paint hazard
reduction activities are properly removed to render residential
properties acceptable for clearance and occupancy. The requirements are
applicable to all lead-based paint hazard reduction activities required
by part 36 of this subtitle except paint repair.
Sec. 37.112 Requirements for daily cleanup.
(a) General. Daily cleanup shall occur at the end of each workday
after all lead-based paint hazard reduction activities have ceased in
occupied units or in units where occupants return daily, and where
exterior lead-based paint hazard reduction activities have occurred.
Daily cleanup is not required in vacant units:
(1) The horizontal surfaces (excluding ceilings) in all containment
areas in which lead-based paint hazard reduction activities are taking
place shall be cleaned in accordance with the requirements of paragraph
(b) of this section, as well as, any vertical surface within 5 feet of
treated surfaces.
(2) If all lead-based paint hazard reduction activities are
completed by the end of the first workday, daily cleanup is not
required.
(b) Required practices. Daily cleanup shall include the following
practices:
(1) Debris shall be wrapped in a protective covering with all seams
taped or placed in closed durable containers resistant to puncture.
(2) Workers shall use cleaning practices that minimize the
generation of airborne dust, such as misting dust and debris with water
prior to cleaning. Carpets need not be misted prior to vacuuming. A
system of cleaning that involves HEPA vacuuming, wet washing with a
lead-specific detergent or equivalent and then HEPA vacuuming again has
been used effectively to remove lead-contaminated dust.
(3) The containment area's protective coverings shall be examined
and any defects repaired.
(4) Exterior areas affected by lead-based paint hazard reduction
activities shall be examined daily for lead-contaminated debris which
shall be wrapped, secured, and stored until removal.
Sec. 37.114 Requirements for final cleanup.
(a) General. The work area and any surrounding areas where lead-
contaminated dust or debris may be present including window troughs
shall be cleaned prior to performing a clearance examination.
(b) Timing. Final cleanup shall begin no sooner than one hour after
active lead-based paint hazard control activities have ceased, but
prior to repainting or sealing floors or other surfaces.
(c) Required practices. Required practices for final cleanup are as
follows:
(1) Debris shall be wrapped in a protective covering with all seams
taped or placed in closed durable containers resistant to puncture. The
debris shall then be removed from the work area and stored in a secure
location until removal.
(2) Dust and debris shall be removed in a manner which effectively
avoids contamination of the residential property.
(3) Workers shall use cleaning practices that effectively remove
lead-contaminated dust and that minimize the generation of airborne
dust. For example, a system of cleaning that involves HEPA vacuuming,
wet-washing with a lead-specific detergent or equivalent and then HEPA
vacuuming again has been used effectively to remove lead-contaminated
dust.
(4) Protective coverings used to contain or collect dust and debris
within the work area shall be removed in a manner that prevents the
dispersion of lead-contaminated dust and debris.
(5) Exterior areas affected by lead-based paint hazard reduction
activities shall be visually examined for lead contaminated debris. Any
such debris shall be wrapped, secured, and stored until removal.
(d) Sealing treated surfaces. Treated surfaces shall be finished by
painting, varnishing, or an equivalent coating, after final cleanup is
completed and before a clearance examination is performed.
[[Page 29229]]
Subpart I--Clearance
Sec. 37.120 Purpose and applicability.
The purpose of clearance examinations is to assure that all lead-
based paint hazard reduction activities have been properly completed.
Sec. 37.122 General requirements.
(a) Qualified examiner. Clearance examinations shall be performed
by a risk assessor or inspector certified in accordance with the
requirements of 40 CFR 745.226. The risk assessor or inspector must not
be affiliated with, paid, employed, or otherwise compensated by the
entity performing the lead-based paint hazard reduction and the
cleanup.
(b) Timing. The clearance examination shall begin no earlier than
one hour after the completion of final cleanup as performed in
accordance with subpart H of this part and any finish coating of
surfaces.
Sec. 37.124 Unit selection.
(a) Single-family properties. In single-family properties each
dwelling unit, and the worksite shall be examined.
(b) Multifamily properties. In multifamily properties with less
than 21 units which have undergone similar lead-based paint hazard
reduction activities, all units and common areas must be examined. In
properties with 21 or more units, a random sample may be selected for
examination in accordance with the requirements of subpart C of this
part. If any dwelling unit in this sample fails either the visual
examination required in Sec. 37.126 or the dust sampling required in
Sec. 37.128, a clearance examination of all units shall be performed.
Sec. 37.126 Requirements for visual examination.
(a) General. A visual examination of the residential property shall
be performed before dust and soil samples (if required) are collected.
(b) Examining hazard control work. The clearance examiner shall
confirm that all lead-based paint hazard controls were properly
completed by visual examination and reference to such documents as the
risk assessment report, the specifications for hazard reduction, or a
report by the abatement supervisor.
(c) Visual Examination for dust and debris. (1) During the visual
examination, the clearance examiner shall also inspect the dwelling
unit for visual evidence of dust and debris. The interior and exterior
of the residential property shall be free of waste, debris, paint
chips, and settled dust.
(2) If visible dust or debris are found during the visual
examination, these areas of the dwelling unit shall be determined to
fail the visual examination. These areas shall be recleaned in
accordance with the requirements of Sec. 37.130. Any uncorrected
hazards shall be completed before final clearance is established. All
units passing clearance must be free of lead-based paint hazards.
Sec. 37.128 Requirements for dust testing.
(a) General requirements. (1) Dust samples from dwelling units and
common areas shall be collected according to the procedures in this
section. Dust testing shall not begin until the dwelling unit passes
the visual examination.
(2) If the test results exceed the following standards, the
dwelling unit or common area fails the clearance examination and the
actions required by Sec. 37.128 shall be performed:
(i) Hard floors--100 g/ft \2\ (micrograms of lead per
square foot).
(ii) Carpeted floors--100 g/ft \2\.
(iii) Interior window sills--500 g/ft \2\.
(b) Dust sampling requirements. (1) The minimum number and location
of clearance dust samples shall be taken according to Table 1: Minimum
Number and Location of Clearance Dust Samples for All Abatement and
Interim Control Work; or
(2) Composite dust samples from multiple rooms in the same dwelling
unit are acceptable if the rooms have undergone similar lead-based
paint hazard control treatments and cleanup. The minimum number and
location of composite clearance dust samples shall be taken according
to Table 1 at the end of this section.
Table 1.--Minimum Number and Location of Clearance Dust Samples for Abatement and Interim Control Work
----------------------------------------------------------------------------------------------------------------
Number and location of single-
Clearance category Category description surface wipe samples in each room Number and location of composite
\1\ wipe samples
----------------------------------------------------------------------------------------------------------------
1................. Interior treatments. Two dust samples from at least Three composite samples for every
four rooms in dwelling unit batch of four rooms (whether
(whether treated or untreated)--a treated or untreated):
total of 8 samples per unit.
No containment One interior window sill. One floor composite with
within dwelling one subsample from each room.
unit.
One floor and............ One interior window sill
composite with one subsample from
each room with windows, and
For common areas, one for For common areas, one
every 2,000 ft2 of a common area floor subsample for every 2,000
room floor (if present). ft2 (if present); up to 8,000 ft2
for each composite.
2................. Interior treatments Same as Category 1, but only in Same as Category 1 but only in
with containment. every treated room (at least four every treated room and,
rooms) and.
One floor sample outside the One single-surface floor sample
containment area but within 10 outside the containment area but
feet of the airlock to determine within 10 feet of the airlock to
the effectiveness of the determine the effectiveness of
containment system. This extra the containment a system. (This
single-surface sample is required extra single-surface sample is
in 20 percent of the treated required in 20 percent of the
dwelling units in a multifamily treated dwelling units in a
property and all single-family multifamily property and all
properties. single-family properties.)
For treated Common Areas, For Common Areas, one
one floor sample for every 2,000 floor subsample for every 2,000
ft2 and one floor sample outside ft2 (up to 8,000 ft2 for each
containment. composite) and one floor sample
outside containment.
3................. Exterior treatments. Two dust samples as follows: Two dust samples as follows:
[[Page 29230]]
At least one dust sample One composite on
on a horizontal surface in part horizontal surfaces of the
of the outdoor living areas outdoor living areas (e.g., a
(e.g., a porch floor, balcony, or porch floor, balcony or exterior
exterior entryway), and. entryway), if any and
One interior window sill One interior window sill
sample on each floor where composite for every 4 floors
exterior work was performed. An where exterior work was
additional sill sample should be performed, including lower floors
collected from a few lower floors where exterior work was not done,
to determine if sills below the if present.
area were contaminated by the
work above.
4................. Soil Treatment...... One sample from the entryway...... One sample from the entryway.
----------------------------------------------------------------------------------------------------------------
\1\ A room includes a hallway or a stairway. If no window is present, collect just one floor sample. When a
closet is treated, the room to which it is attached should be tested. A closet is not considered to be a
separate room.
Sec. 37.130 Required actions for dwelling units and common areas that
fail dust tests.
(a) If a single-surface dust sample for a dwelling unit or common
area fails, all components that the sample represents shall be re-
cleaned in accordance with Sec. 37.114 until they pass a dust clearance
test. If single surface samples in only one room or on one type of
component fail, only that room or component shall be recleaned and be
retested repeatedly until it passes a dust clearance test.
(b) If composite surface dust samples for a dwelling unit or common
area fail, all surfaces represented by that dust sample shall be re-
cleaned in accordance with Sec. 37.114 or tested individually to
determine which surfaces fail and must therefore be recleaned. The
areas that fail shall be recleaned and retested repeatedly until they
pass the clearance test.
Sec. 37.132 Requirements for soil testing.
(a) General. Clearance soil samples shall be taken if exterior
lead-based paint hazard reduction activities have been performed. If
the exterior lead-based paint hazard reduction activities involve
covering bare soil only, clearance soil samples are not required. Only
a visual examination is required in accordance with Sec. 37.126(c).
(b) Requirements. The results of soil samples shall be collected
and analyzed in accordance with the following requirements:
(1) Soil testing shall not begin until the residential property
passes the visual examination.
(2) Soil sampling may be performed on a random sample of soil
locations around a multifamily complex of 10 or more buildings.
(3) All soil samples shall be composite samples of bare soil only.
(4) The number and location of clearance soil samples shall be
taken in accordance with the following specifications:
(i) One composite sample shall be collected around the perimeter of
the building. If only selected faces of the building were treated, the
subsamples should come from those faces.
(ii) A second composite sample shall be collected from nearby play
areas, if any.
(6) If the test results for soil samples exceed the following
standards, the worksite fails the clearance examination and the actions
required by Sec. 37.134 shall be performed:
(i) 400 ug/g (micrograms per gram) in children's play areas; or
(ii) 2,000 ug/g (micrograms per gram) in other areas.
Sec. 37.134 Required actions for properties that fail soil tests.
If the amount of lead in bare soil is above 400 ppm in small,
compact play areas, above 2000 ppm otherwise, and at least 2 square
feet of soil are bare, soil shall be re-treated using either interim
controls or abatement in accordance with subparts E and F of this part.
Subpart J--Monitoring
Sec. 37.140 Exemptions.
Monitoring is not required when either of the following has
occurred:
(a) The results of both a risk assessment and a paint inspection
performed in accordance with subparts B and C of this part indicate
that no lead-based paint is present in the dwelling units, common
areas, or on exterior surfaces, and soil and dust lead levels are below
applicable standards.
(b) All building components with lead-based paint have been removed
and/or all lead-based paint has been removed, and a risk assessor
determines that soil and dust lead levels are below applicable
standards.
Sec. 37.142 General requirements.
Monitoring includes two types of procedures: Visual surveying and
reevaluation.
Sec. 37.144 Visual survey.
(a) Objectives. The visual survey shall identify:
(1) Any deteriorated paint surfaces with known or suspected lead-
based paint.
(2) Any failures of prior lead-based paint hazard reduction work.
Encapsulation and enclosure treatments that are no longer securely
attached and sealed and deteriorated paint repairs are examples of
failed treatments.
(3) Structural or plumbing problems, including water leaks, that
threaten the integrity of any remaining known or suspected lead-based
paint or any encapsulation or enclosure treatments.
(b) Schedule. Property owners or other responsible entities shall
conduct annual visual surveying of dwelling units, common areas, and
the worksite, beginning no later than 12 months after the completion of
the initial lead-based paint hazard evaluation and/or hazard reduction
activities.
(1) If interim controls were used on bare soil, visual surveying
must be performed three months after the controls are implemented to
verify the efficacy of the controls and then annually thereafter.
(2) If encapsulation was used as a hazard control the visual survey
shall be conducted at one month, six months, and annually thereafter.
(3) If the owner receives complaints from residents about potential
lead-based paint hazards, if the dwelling unit changes occupants or
becomes vacant, or if significant damage occurs that could affect the
integrity of control treatments, visual surveying of affected surfaces
shall be conducted promptly.
(c) Correction of identified hazards. If any of the conditions
listed in Sec. 37.144(b) are identified during visual surveying, these
conditions shall be promptly and safely corrected.
[[Page 29231]]
Sec. 37.146 Reevaluation.
(a) General. Reevaluation is a modified risk assessment/clearance
examination consists of a visual assessment of painted surfaces and
prior lead-based paint hazard reduction work, and limited dust and soil
sampling.
(b) Objectives. Reevaluations shall be conducted as required to
identify:
(1) Deteriorated paint surfaces with known or suspected lead-based
paint;
(2) Deteriorated or failed interim controls of lead-based paint
hazards or encapsulation or enclosure treatments;
(3) Lead-contaminated dust;
(4) New bare soil with lead levels above applicable standards.
(c) Certified risk assessor. Reevaluations shall be performed by
risk assessors certified in accordance with 40 CFR 745.226. Certified
inspector technicians may conduct environmental sampling under the
supervision of a certified risk assessor.
(d) Scheduling. (1) Reevaluations shall be conducted in accordance
with the schedule in Table 1, Standard Reevaluation Schedule, in this
section. Reevaluation intervals are expressed in months from the date
the risk assessment was completed. Initial and follow-up reevaluations
shall occur no later than the deadlines shown in Table 1, Standard
Reevaluation Schedule.
(2) When more than one reevaluation schedule applies, the more
stringent schedule shall be observed.
(3) If a dwelling unit, common area, or worksite fails a
reevaluation, a new reevaluation schedule shall be initiated. The
initial evaluation results shall dictate which reevaluation schedule
shall be applied. If a dwelling unit fails two consecutive
reevaluations, the reevaluation interval shall be reduced by half and
the number of reevaluations shall be doubled.
Table 1.--Standard Reevaluation Schedule
----------------------------------------------------------------------------------------------------------------
Reevaluation Visual survey (by owner
Schedule Evaluation results Action taken frequency and or owners
duration representative)
----------------------------------------------------------------------------------------------------------------
1................ Combination risk None.................... None............ None.
assessment/paint
inspection finds no
leaded dust or soil and
no lead-based paint.
2................ No Lead-based paint None.................... 3 Years......... Annually and whenever
hazards found during information indicates
risk assessment a possible problem.
conducted before hazard
control or at clearance
(hazards include dust
and soil).
3................ The average of leaded A. Interim controls and/ 1 Year, 2 Years. Same as Schedule 2,
dust levels on all or hazard abatement (or except for
floors or interior mixture of the two), encapsulants. The
window sills sampled including, but not first visual survey of
exceeds the applicable necessarily limited to encapsulants shall be
standard, but by less dust removal. This done one month after
than a factor of 10. schedule does not clearance; the second
include window shall be done 6 months
replacement. later and annually
thereafter.
B. Treatments specified 1 Year.......... Same as Schedule 3A.
in section A plus
replacement of all
windows with lead
hazards.
C. Abatement of all lead- None............ Same as Schedule 3A
based paint using above.
encapsulation or
enclosure.
D. Removal of all lead- None............ None.
based paint.
4................ The average of leaded A. Interim controls and, 6 Months, 1 Same as Schedule 3A.
dust levels on all or hazard abatement (or Year, 2 Years.
floors or interior mixture of the two),
window sills sampled including, but not
exceeds the applicable necessarily limited to
standard by a factor of dust removal. This
10 or more. schedule does not
include window
replacement.
B. Treatments specified 6 Months, 2 Same as Schedule 3A.
in section A plus Years.
replacement of all
windows with lead
hazards.
C. Abatement of all lead- None............ Same as Schedule 3A.
based paint using
encapsulation and
enclosure.
D. Removal of all lead- None............ None.
based paint.
5................ No leaded dust or leaded A. Interim controls or 2 Years......... Same as Schedule 3A.
soil hazards mixture of interim
identified, but lead- controls and abatement
based paint or lead- (not including window
based paint hazards are replacement).
found.
B. Mixture of interim 3 Years......... Same as Schedule 3A.
controls and abatement,
including window
replacement.
C. Abatement of all lead- 4 Years......... Same as Schedule 3A.
based paint hazards,
but not all lead-based
paint.
D. Abatement of all lead- None............ Same as Schedule 3A.
based paint using
encapsulation or
enclosure.
E. Removal of all lead- None............ None.
based paint.
6................ Bare leaded soil exceeds Interim controls........ None............ 3 months to check new
standard, but less than ground cover, then
5,000 ug/g. annually to identify
new bare spots.
[[Page 29232]]
7................ Bare leaded soil greater Abatement (paving or None............ None for removal,
than or equal to 5,000 removal or cultivation). annually to identify
ug/g. new bare spots or
deterioration of
paving.
----------------------------------------------------------------------------------------------------------------
(e) Scope and dwelling unit selection. Reevaluations of single-
family and multifamily properties shall be performed as follows:
(1) In single-family properties and multifamily properties of five
units or less, all dwelling units and common areas, as well as the
worksite, shall be reevaluated.
(2) In multifamily properties of more than five similar dwelling
units, a sample of dwelling units may be selected for reevaluation. If
sampling is used, units to be reevaluated shall be selected in
accordance with the targeted sampling requirements of Sec. 37.10, or
the random sampling requirements of Sec. 37.34. If possible, some of
the units selected shall be units not previously evaluated. Common
areas associated with the units selected and the worksite shall also be
reevaluated.
(f) Protocol. Reevaluations shall be performed in accordance with
the following requirements:
(1) A certified risk assessor shall perform a visual assessment to
identify any deteriorated lead-based paint, any failures of lead-based
paint hazard reduction activities, or any other lead-based paint
hazards, as follows:
(i) The risk assessor shall review any past risk assessment, paint
inspection, clearance, reevaluation reports, and any other information
describing the hazard reduction activities in use.
(ii) A careful visual assessment of all lead-based paint hazard
reduction activities and any known or suspected lead-based paint shall
then be conducted to determine whether the paint is still intact and
the hazard reduction activities are well maintained.
(iii) The visual assessment of the worksite shall identify any new
areas of bare soil, as well as checking for any failures of lead hazard
reduction activities performed for previously contaminated soil.
(2) For deteriorated paint surfaces identified during the visual
assessment for which reliable information about lead content is
unavailable, the risk assessor shall measure the lead content by XRF
analyzer or paint chip laboratory analysis performed in accordance with
the requirements of Sec. 37.14, except as follows:
(i) If the owner or risk assessor assumes that all such
deteriorated painted surfaces contain lead-based paint, analysis of the
paint's lead content is not required.
(ii) Testing is not required if the surface area of deteriorated
paint on a single component does not exceed 10 square feet on exterior
components with large surface areas, 2 square feet on interior
components with large surface areas, or 10 percent of the total surface
area of interior or exterior components with small surface areas.
(3) If any hazard reduction activity is failing (e.g. an
encapsulant is peeling away from the wall or a paint stabilized surface
is no longer intact) or deteriorated lead-based paint is present, the
risk assessor shall determine acceptable options for controlling the
hazard.
(4) Upon completion of the visual assessment, if all lead-based
paint hazard reduction activities appear to be in place and no
deteriorated lead-based paint is present, the risk assessor shall begin
dust sampling. If any lead-based paint hazard reduction activities are
not in place or deteriorated lead-based paint is present, the hazards
shall be controlled before any dust sampling occurs.
(5) Dust sampling of dwelling units and common areas shall be
performed as follows:
(i) For reevaluation, composite dust sampling is permitted as a
cost effective method. At least two composite samples shall be taken,
one from floors and the other from interior window sills. No more than
four subsamples shall be collected for each composite sample. If the
dwelling unit contains both carpeted and uncarpeted living areas,
separate floor samples are required from the carpeted and uncarpeted
areas.
(ii) Dust samples or subsamples shall be collected from locations
selected in accordance with Sec. 37.16.
(iii) If a dwelling unit or common area is found to contain lead
levels that exceed the following standards, that dwelling unit or
common area shall be cleaned in accordance with the requirements of
Sec. 37.114.
(A) Hard floors--100 g/ft\2\.
(B) Carpeted floors--100 g/ft2.
(C) Interior window sills--500 g/ft\2\.
(6) Soil testing shall be performed as part of a reevaluation if
new areas of bare soil are identified during the visual assessment.
Soil samples shall be collected from locations selected in accordance
with Sec. 37.18. If the amount of lead in soil is above 400 ppm in play
areas or above 2000 ppm in other areas, and at least 2 square feet of
soil are bare, soil shall be treated using interim controls or
abatement in accordance with subparts E and F of this part.
(7) If the visual assessment reveals that the controls used for
lead-contaminated soil (e.g., impermanent coverings or land use
controls) have failed, more permanent soil treatments that will
effectively control these hazards shall be performed. For example, if
the gravel used to cover an area of contaminated soil is worn away due
to use or erosion, a more durable surface covering such as artificial
turf or asphalt must be used.
(g) Reporting. The risk assessor shall produce a written report
documenting the presence or absence of lead-based paint hazards. The
report shall:
(1) Identify any lead-based paint hazards previously detected and
controlled and discuss the efficacy of these interventions;
(2) Describe any new hazards and present the owner with acceptable
control options and their accompanying reevaluation schedules;
(3) Identify when the next reevaluation will occur, if necessary.
(h) Completion of required reevaluations. When all required
reevaluations are completed, the dwelling unit is subject only to
annual visual surveys. However, if ownership of the residential
property is transferred, a new reevaluation schedule must be initiated.
Dated: December 15, 1995.
Henry G. Cisneros,
Secretary.
[FR Doc. 96-14101 Filed 6-6-96; 8:45 am]
BILLING CODE 4210-01-P
