The U.S. Environmental Protection Agency (“EPA”) recently announced it will take action to remove two Frequently Asked Questions (“FAQs”) that concern the role of property management companies (“PMC”) under the Toxic Substances Control Act (“TSCA”) and the Lead Renovation, Repair and Painting rule (the “Rule”).[1] Once the removal of these two FAQs takes effect on March 21, 2022, EPA is signaling that PMCs and their affiliates will now be held responsible for lead-based paint (“LBP”) safety requirements when renovating certain residential buildings. This would be a change from EPA’s advice in the FAQs that PMCs were exempted from the Rule if they subcontract out lead renovation work.

Residential buildings built prior to 1978 and child-occupied facilities such as daycares or schools are subject to the TSCA and the related Rule’s requirements. These buildings may have used LBP which is now known to have hazardous effects on human health, especially in young children which can severely affect their mental and physical development. The Rule protects residents and children from any currently present LBP that could be disturbed by renovation, repair, or new painting activities. It requires that any company “performing or offering to perform renovations” must (1) be EPA certified and the renovations must be done by properly trained professionals for such lead-contaminated environments; (2) disclose to residents key aspects of the renovation and related safety information prior to the renovation; and (3) ensure all work is in compliance with the Rule by documenting these steps.

The EPA’s withdrawal of these two FAQs indicates that any PMCs that perform or offer to perform renovations for compensation—either by using their own employees or hiring outside firms—will be held to the same rigorous standard as any other entity that performs or offers to perform a renovation for compensation in these two regulated areas. PMCs and any of the contractors they hire will be responsible for compliance with the Rule. This means that they can also be held liable for failure to comply with the Rule.

Residential property owners, developers, and their respective PMCs will need to become familiar the Rule’s requirements if they intend to renovate or offer to renovate residential spaces. Included in the determination as to whether a PMC has renovated or offered to renovate a residential space are the following factors:  soliciting and evaluating contractor bids; applying for permits, as appropriate; granting contractors access to the property; overseeing contractor work on the property; informing tenants of renovation activity; verifying completion of renovation activity; or remitting payment to the contractors.

Consequently, PMCs must be aware of the scope and application of the Rule, and comply with its requirements to minimize or avoid liability for its violation. Part of that compliance includes providing owners and occupants with the EPA’s Renovate Right pamphlet. As PMCs contemplate future renovations, they should proceed with caution and plan accordingly.

[1] See https://www.govinfo.gov/content/pkg/FR-2021-11-04/pdf/2021-24010.pdf. 

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