THE LEAD-BASED PAINT PRE-RENOVATION
EDUCATION RULE
INTERPRETIVE GUIDANCE FOR CONTRACTORS, PROPERTY MANAGERS, AND
MAINTENANCE PERSONNEL UNDER SECTION 406(b) OF THE LEAD- BASED PAINT
HAZARD REDUCTION ACT OF 1992
PARTII
October 15, 1999
Prepared by the
Office of Pollution Prevention and Toxics
U.S. Environmental Protection Agency
Washington, D.C. 20460
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[See Part I for questions 1. - 5.]
6. Who is responsible for providing required notifications when multiple contractors are
involved in a given renovation?
If the renovation activity on a given job is overseen by a general contractor, the general contractor
is considered to be the "renovator" under the rule, and thus is responsible for ensuring that the
requirements of the rule are met. A subcontractor would not be considered a "renovator" so long
as he/she has no direct contractual relationship with the property owner or manager relating to the
given job. If a general contractor is not involved, any contractor who performs work on a job
which constitutes "renovation" under the rule is responsible for complying with the information
distribution and recordkeeping requirements of the rule. However, after those requirements have
been met by one contractor on a given job, subsequent contractors working on the same job need
not provide additional distributions/notifications. To verify that an earlier contractor has
complied with the rule, subsequent contractors are advised to personally review and, if possible,
obtain copies of pamphlet delivery confirmations and related records. If such records or copies
thereof are not present at the job site or otherwise not readily available, however, subsequent
contractors may rely upon representations by the earlier contractor, a property manager, or a
property owner that the rule requirements have been met, provided that such representations are
documented in writing and signed by the party making the representations. Subsequent
contractors who rely upon verbal representations of a prior contractor's compliance with the rule
may be held liable for non-compliance if those representations are incorrect.
7. If an outside contractor is hired to perform a renovation in an apartment building, can
the contractor effect delivery of the lead hazard pamphlet to the owner of the building via
the property manager?
The statutory language of section 406(b) specifically requires that the pamphlet be provided to
both owners and occupants of target housing. This provision underscores the importance of
notifying building owners of the potential hazards of lead-based paint during renovations.
Awareness of these potential hazards helps not only to ensure protection of tenants, but also to
alert building owners of potential liabilities if appropriate work practices are not followed. In
many apartment buildings, however, it is the property managers who are the day-to-day operators
of the facilities, and as such, they are acting in the capacity of agents for the building owners.
For this reason, EPA believes it is appropriate to permit a property manager to receive, and
acknowledge receipt of, the lead hazard pamphlet on behalf of the owner.
In situations where property managers or their employees are performing the renovations
themselves, they are acting both as "renovators" and as agents for the owner under the rule, and
thus no separate action is required to satisfy the requirement to deliver the lead hazard pamphlet
to the owner because documents in the possession of an agent are deemed to be also on the
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possession of the person or entity represented by the agent.
8. Is a renovation performed by a landlord or by employees of a management firm
considered a "compensated" renovation under the rule?
Yes. By paying rent, tenants are, in virtually all instances, contracting for both the right to
occupy a unit, and for repair/maintenance services to the unit. Therefore, even though money
does not typically change hands at the time repair or maintenance services are rendered, such
services, if they meet the definition of "renovation" under the rule, are considered to be
compensated renovations for purposes of section 406(b).
9. Is the installation of new exterior siding over an existing painted surface considered a
"renovation" under the rule?
Installation of new exterior siding requiring any removal or modification of existing painted
surfaces or painted components to ensure a uniform and structurally secure underlayment for the
new siding is considered "renovation" under the section 406(b) rule. In some cases, however,
installation activities consist solely of attaching the new siding to the existing painted surface or
structural members under the existing painted surface with nails, screws, or other fastening
devices or materials. In these cases, the Agency believes that the disturbance to the existing
painted surfaces is minimal, and therefore does not consider these latter types of re-siding
activities to be "renovation" for purposes of the section 406(b) rule.
10. Does the "limited uses common area" rule discussed in the Part I Interpretive
Guidance (question no. 4) apply to multi-building apartment complexes?
Yes. The Agency determined that it was reasonable to permit alternative notification procedures
in large apartment buildings where the renovations were occurring in an area within a common
area which is used almost exclusively by an identifiable subset of residents. The Agency stated
that in such "limited use common areas", the section 406(b) notification requirements would be
satisfied if (1) individual renovation notices were distributed to those units serviced by, or in close
proximity to, the limited use common area, and (2) placards were posted at all accessible
entrances to the renovation work site which prominently conveyed the information required under
section 745.85(b)(2) of the regulations. The Agency believes that the same logic should be
applied to multi-building apartment complexes; therefore, whenever a renovation occurs in a
limited use common area, multi-building apartment complex comprised of 50 or more dwelling
units on a contiguous site, the notification procedures described above are adequate under the
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rule.
11. Is the exterior of a building included within the meaning of a "common area"? If an
apartment complex consists of several separate buildings, does a common area renovation
in one building trigger the requirement to notify tenants in all buildings?
The examples cited in the definition of the term "common area" under section 745.103 clearly
indicate that both interiors and exteriors of buildings are included within the meaning of the term.
If a renovation is being performed in a common area on the interior of one building in a multi-
building complex, then only the units located in that building need to receive renovation notices.
If the renovation is being performed on the exterior of one of the buildings or elsewhere on the
complex grounds, however, written notice of the renovation must be provided to every unit in the
complex unless the renovation is occurring in an area which qualifies as a "limited use common
area" as described in questions 4 and 9 above.
12. If renovation activity is being performed on a balcony of a unit, does that activity
trigger the common area notification requirements?
Under section 745.103 of the rule, a "common area" is defined as "a portion of a building that is
generally accessible to all occupants." A balcony which is generally accessible only by the
occupants of an individual dwelling unit does not fall within this definition. Therefore, renovation
activities taking place within the confines of a balcony would be subject only to the requirements
applicable to renovations within an individual unit. Note, however, that if such renovations are
not confined to the balcony, i.e., result in the release of dust, paint chips, or other construction
debris to the outside of the building, the persons performing the renovation would be required to
follow the rule requirements applicable to renovations in common areas.
13. Can common area renovation notices be delivered to the mailboxes of a unit, or only to
the unit itself?
The requirement to distribute common area renovation notices to dwelling units in multi-family
housing may be satisfied either through delivery of the notices directly to tenant units or through
delivery to tenant mailboxes. If mailbox delivery is used, both hand delivery and delivery via U.S.
mail is acceptable; however, U.S. mail deliveries must be sent 7 days prior to the commencement
of renovations and documented with a certificate of mailing.
14. If you "seal off" a common area for the duration of a renovation, does the renovator
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still have to provide notifications to all tenants?
When tenant accessibility to a work site within a common area can be precluded for the duration
of a renovation, the Agency considers that work site to be temporarily excluded from the common
area of the building because it is not accessible to the residents and users of the building. To
qualify for this exclusion, however, the work site must be in an area which is enclosed by a wall,
fence, or other permanent or temporary physical barrier which prevents access by tenants and
other building users. Rope, tape lines, pylons, and similar work area designation devices which
can be easily surmounted or bypassed are not acceptable barriers.
15. Does the "emergency repair" exemption apply to the entire repair, or only that portion
of the repair which addresses the source of the emergency.
The exemption for emergency renovations was added to the final rule to address situations in
which non-routine failures of equipment necessitate immediate action to address safety or public
healths hazards or threats of significant damage to equipment and/or property. In these types of
situations, the need for immediate action clearly outweighs the need to provide lead hazard
information to tenants before the renovation is commenced. Once the portion of the repair that
addresses the source of the emergency is completed, however, the justification for the exemption
from the rule is no longer operative; therefore, any additional renovation activity needed to return
the renovation work area to its pre-emergency condition would be subject to the requirements of
the rule. Thus, for example, repairing a hole in a wall after a broken water pipe has been repaired
would be subject to the rule, as would repainting any water-stained walls or ceilings resulting
from the pipe break.
16. Does a renovator need to attempt personal delivery of the lead information pamphlet to
a tenant more than one time before utilizing the "self-certification of pamphlet delivery"
option?
Personal delivery of the lead information pamphlet is preferable, wherever possible, because EPA
believes that tenants will be more likely to read the information if it is handed directly to them. It
also affords tenants an opportunity to raise concerns and ask questions about the renovation. In
drafting the final rule, however, the Agency recognized that personal delivery would not always
be viable option, especially when a renovation needs to be commenced on short notice and an
adult occupant of the apartment is not available. For this reason, the Agency included a provision
in the final rule which permits the person delivering the pamphlet to "self-certify" the delivery
(40 C.F.R. 745.85(a)(2)(i)). Although it is recommended that delivery be attempted on more than
one occasion, a single good faith delivery attempt is acceptable for purposes of the rule.
SPECIAL NOTE: the self certification provisions of the rule apply only to pamphlet deliveries to
rental units; renovators cannot self-certify a pamphlet delivery to the owner of the dwelling unit.
Pamphlet deliveries to unit owners must be made directly to the owner, an agent of the owner, or
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mailing.
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17. In a typical co-operative apartment building, occupants do not own the individual
units; rather they "own" an undifferentiated share in the entire building and then "rent"
back a specific unit from the co-operative corporation. Similarly, in a typical condominium
building, owners of individual units jointly own the common areas of the building. For
purposes of the rule, who are the "owners" in such situations?
EPA recognizes that co-operative apartments ("co-ops") and condominiums ("condos") can be
structured in a variety of ways. For example, in the case of co-ops, a corporation (sometimes
referred to as a "co-op association") is often established and owns all the units and common areas
comprising the co-op; in such circumstances, individual unit "shareholders" own shares in the
corporation and also own occupancy rights or lease a unit from the corporation. In the case of
many condos, individuals hold title to their individual units, and all condo unit owners jointly own
the common areas (with a condo association established to represent the interests of all the unit
owners).
For purposes of this rule, the following general principles will be applied:
(a) if title to a building is held by a corporation which leases back dwelling units to individual
corporation shareholders, as in typical co-op apartment buildings, the corporation/association will
generally be considered to be the "owner" of the entire building, and individual resident
shareholders, or persons who rent from individual shareholders, will generally be considered to be
tenants.
(b) In buildings where individuals hold title to specific dwelling units and jointly hold title to
common areas of the building, as in typical condo buildings, the individual owners each will be
considered to be the owners of his/her individual units, and the association (or its equivalent body
composed of, or representing, the group of owners) will be considered the owner of the common
areas of the building.
See the attached Table A for more specific guidance on meeting the requirements of the rule as
they relate to various renovation scenarios in co-ops and condos.
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TABLE A
COMPLIANCE WITH §406(b) PRE-RENOVATION RULE FOR
COOPERATIVE APARTMENTS AND CONDOMINIUMS
RENOVATION
LOCATION
RULE
REQUIREMENT
COMPLIANCE FOR
CO-OPs
COMPLIANCE FOR
CONDOs
Renovations Inside
Individual Unit
1. Deliver Pamphlet to
Owner
§745.85(a)(1)
2. Deliver Pamphlet to
Adult Occupant
(Tenant)
§745.85(a)(2)
1. Deliver Pamphlet to
Co-op Corp./Assoc.
or Property Manager
2. Deliver Pamphlet to
Resident Co-op Share
holder or Adult
Occupant
1. Deliver Pamphlet to
Condo Unit Owner
(Or Agent of Owner)
2. If Condo is Leased,
Deliver Pamphlet to
Adult Occupant
Renovations In a
Common Area
1. Deliver Pamphlet to
Owner
§745.85(b)(1)
2. Deliver Notice to
Each Unit
§745.85(b)(2)
1. Deliver Pamphlet to
Co-op Corp./Assoc.
or Property Manager
2. Deliver Notice to
Each Unit
1. Deliver Pamphlet to
Condo Association
or Property Manager
2. Deliver Notice to
Each Unit
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