Property management companies (PMC) need to pay attention to a recent change in the U.S. Environmental Protection Agency’s (EPA) enforcement discretion concerning liability from renovations that could encounter lead-based paint. EPA has announced a change to its enforcement priorities for the Lead Renovation Repair and Paintings (RRP) Rule, which applies to renovations, repairs, or painting that could disturb lead-based paint in certain buildings constructed before 1978. Following the change, PMCs themselves, in addition to contractors hired, will be required to be trained by EPA-approved training providers and certify that they follow lead-safe work practices when conducting regulated renovations.

Some background on EPA’s RRP Rule: Lead paint has been in the regulatory crosshairs for some time due to its potential to affect the health of young children. Under old RRP Rule guidance, PMCs could protect themselves from RRP Rule liability by (a) hiring a federally certified firm and (b) not allowing their own employees to do any of the renovation work. However, EPA will withdraw its guidance to that effect on March 21, 2022, and intends to hold PMCs themselves responsible for following the RRP Rule. EPA says this change is motivated by its new focus on environmental justice issues. EPA stated that the enforcement of this rule is “especially important to underserved and overburdened communities, which often include a high proportion of rental housing managed by PMCs, and the military community, where family housing is also often managed by PMCs.”

Details on the regulatory change: The change involves EPA’s withdrawal of two Frequently Asked Questions (FAQ) related to the RRP Rule. The first withdrawn FAQ (23002-13650) states that a PMC does not need to obtain EPA certification under the RRP Rule if no PMC employee is doing renovation work. The second FAQ (23002-18348) explains that the federally certified firm hired by the PMC, and not the PMC itself, is responsible for meeting all requirements of the RRP Rule. EPA’s Federal Register Notice related to the withdrawal explicitly states that EPA intends to review PMCs’ actions related to the RRP Rule as it would any other entity and that the PMC, along with any firm it hires, will be required to get EPA certification and ensure that the renovations comply with all of the RRP Rule requirements. Failure to do so may motivate EPA to bring an enforcement action against both the PMC as well as any firm performing the renovation work.

If you have any questions about your company’s obligations under the RRP Rule, please reach out to any member of the firm’s Environmental Group for further information.