For years owners of pre-1978 properties have dealt with lead-based paint (LBP) concerns. Meanwhile, owners of newer properties thought themselves lucky to be exempt from worry. That is changing, however, thanks to a new federal rule that expands the definition of “LBP hazards.” Suddenly, no one, not even a non-residential property owner, is exempt from potential liability. Unfortunately, most owners have no idea that LBP now affects them too.

How did we get here?

In 1992 Congress passed the Residential Lead-Based Paint Hazard Reduction Act after the U.S. Department of Housing and Urban Development (HUD) reported that more than 80% of the nation's housing contained LBP. The law requires owners to disclose to potential buyers and renters any information they have concerning LBP or LBP hazards on their property.

The statute defines LBP as paint with lead in an amount equal to or greater than 1.0 mg/cm2, but it does not define an LBP hazard. It left that to federal agencies.

In the meantime, HUD revised its estimates. The department now says LBP is present in just 40% of pre-1960 housing and 15% of the housing built between 1960 and 1978. Despite these significant revisions, the U.S. Environmental Protection Agency (EPA) recently released a far-reaching rule that finally defines an LBP hazard.

Under the new rule, which took effect on March 6, a single chip of LBP is now considered an LBP hazard. This is a significant departure from prior HUD and EPA rules that called for special precautions only when 2 or more sq. ft. of interior paint was disturbed. Even more troublesome, the rule says that lead dust on interior window sills and lead in the soil are also LBP hazards.

This new definition effectively makes all property owners, including those without any LBP in their buildings, responsible for the lead dust that drifts through the air and settles on their properties. The National Multi Housing Council (NMHC) and the National Apartment Association (NAA) have filed a lawsuit claiming that the EPA has exceeded its authority by regulating all lead in dust and soil without considering its source.

The EPA's new rule does not compel owners to take any particular action or perform any specific abatement procedure. But the new standards can trigger owner liability under other housing regulations. Furthermore, the EPA expects third parties, such as mortgage and insurance underwriters, to compel cleanup actions in accordance with the new standards.

The one-chip definition requires owners of pre-1978 properties to act as if their properties contain lead, unless they are prepared to spend an average of $500 per apartment or $850 per single-family home to have the property tested and declared LBP free by a state-certified inspector. Owners will be in an impossible situation with the federal LBP disclosure regulations, since virtually every property will have a paint chip missing.

Failure to list the presence of such a hazard on the disclosure forms given to prospective renters and purchasers could result in fines of up to $25,000 a day. The implications are more severe for owners of federally assisted properties. The one-chip rule may trigger expensive follow-up testing under HUD's new assisted housing LBP rules.

The hidden time bombs

Even more egregious than the one-chip standard are the lead in dust and soil standards. Tons of lead exists in our environment, much of it completely unrelated to paint. For example, lead from municipal incinerators and industrial sources often drifts through the air and lands on soil or is blown into homes.

How widespread is floating lead? Recent testing of well-maintained homes in Maryland, Texas and Georgia found that even though the houses had no LBP, they had significant lead dust on their interior windowsills and floors.

Under the new standard, properties that have never had lead-based paint may still be liable for lead hazards in dust and soil. As testing becomes more widespread, lead in dust is bound to emerge as a growing problem for all property owners.

In the future

What does this mean for property owners? Expect state and local consumer protection standards to incorporate these new standards. They may also become enforceable standards by state and local authorities.

These rules threaten to make lead dust an issue over which property owners will have little control, but much to lose.

Eileen Lee is vice president of environment at the National Multi Housing Council (NMHC), based in Washington, D.C. Patrick Connor is president of Connor Environmental Services & Engineering Assessments, Baltimore, Md.