HUD PIH Notice § 2011-44

[pic]                        U.S. Department of Housing and Urban
Development
                                      Public and Indian Housing
                                      Office of Healthy Homes and Lead
                                  Hazard Control
____________________________________________________________________________
___
Special Attention of:  Notice PIH 2011-44 (HA); OHHLHC 2011-01
Office Directors of Public Housing;
Regional Directors; Public Housing                 Issued:   July 29, 2011
Agencies; Housing Choice Voucher
Property Owners.
                                       _______________________
                                       Cross References:
                                       24 CFR Part 35
                                       24 CFR Part 901
                                       24 CFR Part 941
                                       24 CFR Part 965
                                       24 CFR Part 968
                                       24 CFR Part 970
                                       24 CFR Part 982
      24 CFR Part 983


SUBJECT: Guidance on EPA’s Lead-Based Paint Renovation, Repair and Painting
(RRP) Rule, HUD’s Lead Safe Housing Rule, and the EPA-HUD Lead Disclosure
Rule.

1. Purpose.

This Notice provides guidance to public housing agencies (PHAs) and Housing
Choice Voucher (HCV) property owners and summarizes the regulations
pertaining to lead-based paint under the Environmental Protection Agency’s
( EPA’s) Renovation, Repair and Painting (RRP) Rule at 40 CFR Part 745, and
HUD’s regulations at 24 CFR Part 35, commonly known as the Lead Safe
Housing Rule (LSHR) and the Lead Disclosure Rule (LDR).  It also includes a
description of EPA enforcement and fines, and provides PHAs with examples
of possible compliance issues that PHAs should work to avoid.
Additionally, PHAs must incorporate ongoing lead-based paint maintenance
and reevaluation activities into regular building operations.

This Notice will remain effective until, amended, superseded or rescinded.



2. HUD Directives and Applicable Regulations.

Lead poisoning remains a major environmental health problem in the United
States.  Lead poisoning is a health hazard that can have life-long effects
on the health of adults and children, especially young children under six.
 Although the overall incidence of lead poisoning has decreased since the
banning of lead-based paint, and leaded gasoline, lead poisoning has been
linked to neurological development issues, including cognitive deficits
(e.g., lowered IQ).

HUD is committed to eliminating and controlling lead hazards in its
properties, as well as using HUD assistance to improve health outcomes.
HUD is issuing this Notice to assist PHAs in complying with HUD and EPA's
regulations on lead-based paint and controlling lead-based paint hazards.

3. Existing Federal Regulations.

The LSHR is the primary regulation of lead-based paint related activity for
assisted housing.  The Office of Public and Indian Housing (PIH) and the
Office of Healthy Homes and Lead Hazard Control (OHHLHC) have issued
detailed guidance on the LSHR to HUD staff and clients and a toolkit for
the Housing Choice voucher program, which can be found at
http://www.hud.gov/offices/adm/hudclips/guidebooks/PIH-2007-101/index.cfm.
The guidance clearly delineates the responsibilities of the PHA for both
the Housing Choice Voucher program and the public housing program and
should be read by both programs.

For the LSHR, in the public housing program, the PHA is considered the
owner.  The PHA is usually responsible for ensuring the landlords comply
with the Housing Choice Voucher lead requirements, which are not the same
as the requirements for the Housing Authority.

In addition to the LSHR, PHAs are required to comply with the LDR.  The LDR
applies to federally-assisted and private housing built before 1978, with
certain exceptions.  Under the LDR, the owner of a property is required to
inform tenants about the hazard of lead-based paint (Lead Warning
Statement), and make a disclosure statement that advises the tenant of the
presence of any known lead-based paint and or lead-based paint hazards, in
the unit, common areas servicing the unit, and exterior areas.
Alternatively, the disclosure must indicate that the owner has no knowledge
of the presence of any lead-based paint and/or lead-based paint hazards.

The statement must also list any records or reports available to the owner,
and verification that the records or reports have been made available to
the tenant.  The owner of a property must also provide to the occupants an
EPA approved brochure titled “Protect Your Family from Lead in Your Home.”
For the HCV program, the PHA is required to take specific steps to ensure
that the owner abides by the LDR.

PIH encourages PHAs and HUD staff to familiarize themselves with the
guidance, which is still relevant.

In addition to the LSHR, EPA has issued final regulations for renovation of
pre-1978 housing.  Under the RRP Rule at 40 CFR Part 745 contractors and
maintenance/rehab staff from housing agencies that perform renovation,
repair, and painting projects that disturb paint in homes and child
occupied facilities built before 1978 must be certified as renovators and
must follow specific work practices to prevent lead contamination.
Practices include proper preparation of the site, providing proper notice
of work, practices to control dust, paint and other hazards, and disposal
of materials.    Online training on EPA’s RRP Rule’s impact on HUD funded
lead-based paint activities is available at
http://webcast.hud.gov/508/index.php?search=lead#.


If a PHA uses its own staff to perform repairs, maintenance, and
rehabilitation of pre-1978 housing that has not been certified as lead-free
(referred to as renovation, repair, and painting projects by EPA), the
staff must obtain training and apply to EPA to become a certified
renovation firm.  A subject agency must also ensure that it has at least
one certified renovator on staff to be available to actively supervise
projects.  Individuals can become certified renovators as well by taking an
eight hour training course from an EPA approved provider, or a four hour
refresher course if they have already taken training in Lead Safe Work
Practices within the last five years.  Training may be available from local
trade associations; however information about certification requirements
and available training providers is available at
www.epa.gov/lead/pubs/renovation.htm.

PHAs should continue to comply with the LSHR and LDR in addition to the RRP
Rule.  While there is an overlap in the requirements, the LSHR is generally
more stringent than the EPA requirements for paint testing, worker
certification, worksite clearance, and management of units where a child
with lead poisoning has been identified.  Whenever more than one federal
rule applies, the most protective section applies.  Additionally, if state,
tribal or local law, ordinance, code, or regulation defines lead-based
paint differently than the Federal definition, the more protective
definition must be followed in that jurisdiction.  Some states operate
their own program for training and certification under the RRP rule.
Contractors and training providers working in those states must contact the
state to find out more about training and certification requirements.  A
list of those states can be found at
http://www.epa.gov/lead/pubs/renovation.htm#authorized, or by contacting
your local EPA office.

A comparison of HUD’s and EPA’s regulations for lead based paint
requirements can be found in the EPA/HUD Model Renovator Training Course,
Appendix 2, available at www.epa.gov/lead/pubs/rrp_8hr_app2_feb09.pdf.

4.    EPA Enforcement and Fines.


In August, 2010, EPA issued its final “Consolidated Enforcement Response
and Penalty Policy for the Pre-Renovation Education Rule; Renovation,
Repair and Painting Rule; and Lead-Based Paint Activities Rule” .  Under
this policy, EPA can collect up to $37,500 per violation.  EPA enforcement
cases under its lead-based paint regulations may include multiple
violations, especially in multi-family properties where violations are
assessed on a per-unit basis.  For more information, see EPA’s policy at
http://cfpub.epa.gov/compliance/resources/policies/civil/penalty/ .

If EPA requests a record inspection for the RRP rule, contact your counsel
for the PHA (in-house or outside counsel) regarding the request.  OHHLHC
will provide technical support for RRP inquiries.  EPA inspections are
voluntary; however EPA can issue a subpoena to compel record disclosure.
Attachment 1 is a checklist to assist in compliance, and includes the types
of documentation that a PHA may be asked to produce during an EPA
inspection.

Pursuant to a Memorandum of Understanding between HUD and EPA, if EPA
visits a HUD-assisted property to investigate for compliance with the Lead
Disclosure Rule, you should notify the investigator that this is a HUD-
assisted property and should refer the investigator to the Office of
Healthy Homes and Lead Hazard Control for further investigation and
resolution. (See page 10 of the February 22, 2008 memorandum on “PIH
Guidance on the Lead-Safe Housing Rule and Lead Disclosure Rule for Field
Office Staff” at www.hud.gov/offices/adm/hudclips/guidebooks/PIH-2007-
101/index.cfm).  For more information, you may contact the Director of the
Lead Programs Enforcement Division. For current contact information, see
http://portal.hud.gov/hudportal/HUD?src=/program_offices/healthy_homes/leads
taff.


 5. Compliance Requirements and Additional Resources.

PIH has appointed two coordinators at Headquarters on lead-based paint
issues for PHAs.  Contact Nora McArdle at Nora.C.McArdle@hud.gov or (202)
402-3967, or Tobey Zimber at Tobey.J.Zimber@hud.gov or (202) 402-6230.

All PHAs should have already completed the lead-based paint inspections of
public housing properties.  Risk assessments should have been performed if
the inspections found lead-based paint.  If a PHA has not performed lead-
based paint inspections of its units, it should immediately take steps to
do so.

By this Notice, all PHAs must identify and accumulate all lead-based paint
records pertaining to their properties.  A PHA may keep the original
records either at a project management office, or a central office, or
archived off-site; however a detailed summary of the records and a record
of their current physical location should be available at both the project
office and a central management office. This summary must be provided to
the local HUD field office upon request.  In addition, the PHA must make a
copy of the full reports and records available to be inspected by tenants,
and advise tenants as to when they can inspect the full reports and
records.

In addition, HUD encourages PHAs to keep both a hard and soft/electronic
copy of the records. Copies should be made by photocopying, scanning, or
otherwise creating unalterable copies of the original records.  Original
records should be kept in a secure place for compliance purposes.

If previous inspections or risk assessments were performed, this
information should be scrutinized to determine if the housing is still in
compliance with the LSHR.  If these evaluations were completed before 1999,
additional work may have to be done to comply. For example, in public
housing, a paint inspection and abatement is required with comprehensive
modernization, but not all housing units may have been modernized since the
Rule was finalized in 1999.  Because lead hazards can change over time with
the degradation of paint, if lead-based paint had been previously found in
a unit, in advance of modernization, the PHA must complete a risk
assessment, and implement interim controls if hazards are found.  Lead risk
assessments may be no older than 12 months to be current.  Abatement work
should be completed during modernization.  Once the work is completed, the
PHA must perform clearance procedures, and must incorporate ongoing lead-
based paint maintenance and reevaluation activities into regular building
operations if any lead-based paint remains on the property.  See 24 CFR
35.1115, 34.1120, and 35.1355.

Any claim that properties are lead-free must be appropriately documented in
accordance with Chapter 7 of the HUD Guidelines for the Evaluation and
Control of Lead-Based Paint at
www.hud.gov/offices/lead/lbp/hudguidelines/index.cfm.

 6. Possible Compliance Issues in Public Housing

PHAs should take care to ensure compliance with the HUD/EPA Lead Disclosure
Rule, the HUD Lead Safe Housing Rule and the EPA Renovation, Repair and
Painting Rule.  Some examples of possible compliance issues include:


        • Under the Lead Disclosure Rule, landlords, including PHAs, are
          required to provide their tenants with a brochure detailing the
          effects of lead-based poisoning, and disclose all known lead
          hazards at the property.  The brochure was updated in 2010.
          Brochures created before the update should be destroyed.  A copy
          of the latest version of the pamphlet, the EPA’s “Protect Your
          Family from Lead in Your Home” as well as required specific
          disclosure language and documentation that supersedes Handbook
          7487.1 is available at
          www.hud.gov/offices/lead/enforcement/disclosure.cfm.


        • PHAs must take steps to ensure that landlords participating in the
          Housing Choice Voucher program maintain lead paint disclosure
          records and disclose all known information about lead paint in
          units and common areas where testing and lead hazard control work
          has been performed.  PHAs must also maintain all records regarding
          lead paint and make them available to residents as part of the
          disclosure process, as well as keeping records of the disclosure
          process for three years.

        • If a unit is found to be out of compliance with HQS because of a
          lead paint inspection prior to occupancy by a child under 6 or due
          to a risk assessment of the unit because a child living in the
          unit was reported to have an environmental blood lead level, the
          unit is not in compliance with HQS until the lead hazard is
          cleared. This is true whether a child will be living in the unit
          or not. PHAs are encouraged to maintain records of all such units
          so that they are not approved for occupancy with a HCV until the
          unit is cleared.

        • Under the Lead Safe Housing Rule, PHAs must ensure that all lead
          based paint testing and lead abatement/hazard control has been
          completed in compliance with the regulations.  A summary of
          requirements by the type of program can be found at
          www.hud.gov/offices/lead/enforcement/lshr_summary.cfm.
          Requirements for Public Housing are found in 24 CFR Part 35
          Subpart L and requirements for Housing Choice Voucher program
          units are found in 24 CFR Part 35 Subpart M for tenant-based
          rental assistance.


        • PHAs must provide the local health department an updated list of
          unit addresses receiving assistance under a tenant based rental
          assistance program on a quarterly basis, as described under 24 CFR
          35.1225(f).  This data sharing helps ensure that children living
          in HUD-assisted housing who are lead-poisoned are quickly
          identified to prevent additional harm.

        • The PHA must notify the Health Department within five days if it
          learns of a lead-poisoned child based on a report from any other
          medical health care professional (24 CFR 35.1130).PHAs must take
          appropriate steps to determine the source of the lead and take
          corrective actions if the housing unit or common areas are the
          source and inform HUD project managers if a child has an
          environmental intervention blood lead level (24 CFR 1130).

        • PHAs cannot exclude families with young children from
          participating in housing programs because of the lead-based paint
          requirements, or require parents to provide information about
          child blood lead levels before offering housing.  Policies of this
          type are a violation of the Fair Housing Act and medical privacy
          standards.

        • There are some differences between the RRP and the Lead Safe
          Housing Rule.  The attached checklist will assist you in complying
          with both laws.



7.   For Further Information.
Contact Nora McArdle at Nora.C.McArdle@hud.gov or (202) 402-3967, Office of
Policy, Program and Legislative Initiatives, Tara Radosevich, Office of
Public Housing (612)-370-3000 or Tara.J.Radosevich@hud.gov, or the Office
of Healthy Homes and Lead Hazard Control, Lead Programs Enforcement
Division, Room 8236, Department of Housing and Urban Development, 451 7th
Street, SW, Washington, DC 20410 or LEAD.Enforcement@hud.gov.




                                             /s/
                            Sandra B. Henriquez, Assistant Secretary for
                             Public and Indian Housing






                            ______________________________________________
                            Jon L. Gant, Director, Office of Healthy Homes
                            and Lead Hazard Control
Attachment 1.

Public Housing RRP Review Checklist:

Housing Agency Name:                                          Yes   No

Does the PHA have any pre-1978 properties?     (    (
Are any properties (1) designated Elderly Disabled and (2) do not have,
   or expect to have, a child under the age of 6?    (    (
Does the PHA have Child Care facilities on any properties?      (    (
Has the PHA completed Lead-Based Paint inspections of all properties?
(      (
      Does the PHA have property inventories of where any lead-based paint
       exists?      (   (
      Does the PHA know which surfaces for each property
       have lead-based paint?        (   (
If all PHA properties are documented to be lead-based paint free or exempt,
stop.

Does the PHA staff perform maintenance in pre-1978 properties
      with lead-based paint?   (   (
If Yes,
      Is the PHA an EPA Certified Firm?   (    (
      Does the PHA have at least one Certified Renovator?        (   (
      Are training records available?     (    (
      Have other staff been trained by the Certified Renovator?       (    (
      Does the PHA have copies of the EPA's lead hazard information
        pamphlet Renovate Right: Important Lead Hazard Information
        for Families, Child Care Providers, and Schools?        (    (
      Does the PHA have tenants sign RRP notification forms
        and maintain documentation for at least 3-years?        (    (

Does the PHA hire outside contractors to perform any
    maintenance or rehabilitation work    (    (
If Yes,
      Do PHA contracting documents require that contractors be EPA
      certified?    (   (
      Does the PHA receive notification from contractors and keep
        the notification for at least 3-years?       (   (

Regardless of who does the work, the Lead Safe Housing Rule (LSHR) will
require clearance using the wipe test procedure and tenant notification.
Both RRP and LSHR require proper documentation. See the following pages for
additional information.

Work Order/ Maintenance File Review:
                                                              Yes   No
Does the PHA have a work order tracking system?      (    (
Do work orders indicate whether the RRP applies or does not apply?    (
(
Has the PHA established which classifications of work would and
   would not be subject to the requirements of the RRP?    (    (
Are work order records impacted by the RRP maintained
   for at least three years?        (    (
Are PHA records maintained for units found to not meet HQS due to a LBP
       visual assessment until the unit is cleared, in order to ensure that

       no HCV holder occupies the unit?
(      (