The United States Environmental Protection Agency (EPA) has proposed regulations that strengthen the removal of lead-based paint/dust caused by renovations or general aging of existing building surfaces. The potential monetary implications for landlords, facility owners, and managers to remediate these properties could be substantial, but lead-based paint removal might also be the end of exorbitantly costly lawsuits, the 'bad press' associated with older facilities, and health issues suffered by those exposed to this health risk.
In 1978, the federal government banned the use of lead-based paint in residences and child-occupied facilities, but it is estimated that roughly 31 million homes still contain lead-based paint. In addition, a 2021 Government Accountability report estimated that more than 15 million students were enrolled in childcare or educational facilities that found lead-based paint in their buildings.
Under the EPA's proposed regulations, any detectable amount of lead dust found while conducting an assessment will be considered 'hazardous' and will require remediation. The current lead hazard standard is 10 micrograms of lead per square foot for floors and 100 micrograms per square foot for windowsills.
Risk of Lead Dust Exposure
Exposure to lead, in any form, is the most dangerous to children (typically under the age of 6) since their bodies are growing, resulting in faster and more concentrated absorption of lead into their bloodstream. Children are also most likely to encounter lead-based paint dust while crawling, being at eye level with windowsills (one of the most likely places to have a deterioration of paint), or simply always putting their hands in their mouths. Previous regulations indicated that children with a blood lead level of concern was 10 or more micrograms per deciliter. Under the newly proposed regulations, this level would be lowered to 5 micrograms per deciliter of lead in blood. By lowering the level of concern regarding lead in blood levels, children who test positive for lead exposure will prompt parents, doctors, facility owners, landlords, and property managers to take quicker action to remove the health hazard from their buildings.
Impact on Housing and the Childcare Industry
While this new policy would not require owners to proactively test for lead dust, if a child exhibits symptoms of lead exposure, it could trigger state and local requirements for testing. The potential zero allowance policy may require building owners to remediate their properties regardless of construction date, which could be costly. Government and public associations are hoping that the EPA will collaborate with them to discuss federal funding, similar to what is currently available under the Water Infrastructure Improvements for the Nation (WINN) Act. This act established the Lead in Drinking Water grant program to award funding for the reduction of lead in water in disadvantaged communities.
Takeaway for CRE Owners and Managers
Currently, landlords face substantial legal expenses defending themselves against lead-exposure related lawsuits. If found liable, they pay settlements or judgments as well—in addition to paying for lead remediation at the site where the exposure occurred. A history of lead exposure can cause reduced market value or difficulty selling an asset. Liability insurance premiums may increase, and reputational damage to the property or the landlord can result in lost income.
Taking proactive steps can help mitigate these risks. While proactive testing is not required under the proposed rule, because the blood lead level for potential exposure is reduced, the likelihood of discovering lead exposure is increased—better to test for lead than to learn about its presence because a tenant has been exposed. Furthermore, under the proposed regulations, lead abatement must result in 3 micrograms or less of lead per square foot of floor space—significantly lower than the current threshold permitted. Reducing the risk of exposure for occupants means reducing the risk of liability for owners.
Contact a qualified environmental expert regarding lead paint inspection and risk assessment. In addition to the current and proposed federal EPA rule, state and local regulations apply, so be sure to find an industrial hygiene consultant with proper certifications for your region.
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Carlton Gordon
Carlton Gordon, CIE, is a Senior Project Manager with Partner Engineering and Science, Inc. He has over 20 years of experience as an industrial hygienist, providing environmental consulting services to a diverse group of clients including utilities, military, government, health care, construction, property developers, property managers, and manufacturing. Mr. Gordon is an EPA-certified Lead Risk Assessor, AHERA Asbestos Inspector, and State of Florida Licensed Mold Assessor who has performed countless hazardous materials surveys (HazMat) for public and private clients.
