Withdrawal of Two Answers to Frequent Questions About Property Management Companies and the Toxic Substances Control Act Lead-Based Paint Renovation, Repair, and Painting Rule

Environmental Defense Fund (EDF) compliments EPA for its withdrawal of two answers to its guidance1 on frequent questions about property management companies (PMCs) regarding its Lead-Based Paint Renovation, Repair, and Painting Rule (RRP) and the detailed explanation it gave in the November 4, 2021 Federal Register notice2 explaining the decision. We encourage the agency to further revise the guidance by adding two replacement answers that address PMC compliance with the RRP rule. The revised answers will help PMCs – as well as residents, contractors, and landlords – understand more clearly who is responsible for complying with the RRP rule. Because this explanation is already provided in the November 4 notice, such change should be only a minor update to the guidance that would not require a follow-up notice in the Federal Register. It is important that EPA went to the effort to publish its rationale for the withdrawal of these answers to frequent questions. Moreover, the approach EPA laid out is helpful in highlighting the important role PMCs have in protecting children and families from lead poisoning. EPA reminds us that: - "Communities with environmental justice concerns often include a higher proportion of rental housing." - "PMCs manage a significant portion of the nation's rental housing" with the largest 50 firms controlling 3.4 million units, more than 200,000 family housing projects, and 99% of privatized military housing. The withdrawn answers were grounded in an inappropriate analogy that assumed the PMCs are similar to landlords and, therefore, would only be required to be certified under the RRP if its employees did the work. However, PMCs are actually contractors to landlords and property owners. As contractors, the RRP requires that the firm be certified if it performs, offers to perform, or claims to perform RRP-regulated renovations. Therefore, if a PMC is strictly focused on leasing units and collecting rents in housing built before 1978 it is unlikely to require RRP certification. However, that narrow role is the exception for most PMCs. In contrast, if a PMC hires a contractor to conduct RRP-regulated renovations, it must be an RRP-certified renovation firm. It does not necessarily require that a PMC's employees do the renovation – only that the firm hires a certified renovation firm. Consistent with the RRP rule, EPA explains that a PMC needs to be RRP-certified if it: - Offers to perform RRP activities as part of its agreement – whether written or oral – with the property owner; - Solicit and evaluates contractor bids; - Applies for building or renovation permits; - Provides contractors access to the property; - Oversees contractor's work on the property; - Informs tenants of renovation activity; - Verifies completion of renovation activity; - Pays the contactor; or - Coordinates work schedules of various contractors. We encourage EPA to: - Provide clear answers to PMCs about their duties under the RRP rules: Revise the guidance to keep the withdrawn questions but provide answers to each question consistent with its explanation in the November 4 Federal Register notice and publish these answers with the associated questions in a Federal Register notice to provide them with a level of dissemination warranted by their importance - Verify that major PMCs are in compliance: Through OECA, the agency should ensure that the 50 largest PMCs identified by the National Multifamily Housing Council are in compliance with the RRP rule. To the extent, that it finds that a firm violated the RRP because it relied on the withdrawn questions, EPA should consider exercising enforcement discretion and reach an enforcement agreement to return the firm to full compliance. - Provide guidance to realtors who handle similar tasks: Add questions regarding the role of realtors involved in selling or buying property covered by the RRP rule. The role of a realtor, especially for inexperienced h…