Office of Lead-Based Paint Abatement and Poisoning Prevention; Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance

SUMMARY: This proposed rule implements sections 1012 and 1013 of the

Residential Lead-Based Paint Hazard Reduction Act of 1992, Title X of

the Housing and Community Development Act of 1992. These sections set

forth significant new requirements concerning lead-based paint hazard

notification, evaluation, and reduction for federally owned residential

property and housing receiving Federal assistance. This proposed rule

constitutes a major revision of the Department's lead-based paint

regulations. For the first time, HUD's lead-based paint requirements

for all Federal programs will be consolidated in the Code of Federal

Regulations. One part or subpart will set out programmatic requirements

concerning lead-based paint hazard notification, evaluation and

reduction for all covered HUD programs, as well as programs of other

Federal agencies. One part or subpart will distill information

concerning how to perform lead-based paint hazard evaluation and

reduction activities, such as risk assessment and interim controls,

based on the HUD Guidelines for the Evaluation and Control of Lead-

Based Paint Hazards in Housing. Another part or subpart will set out

requirements concerning lead-based paint notification for all pre-1978

residential property sold or leased, including non-federally related

privately owned residential property. (This last part or subpart was

published jointly by HUD and the Environmental Protection Agency as a

proposed rule, on November 2, 1994; a final rule is expected soon.)

DATES: Comments on this proposed rule must be received on or before

September 5, 1996.

The deadline for comments on the information collection

requirements is August 6, 1996, although commenters are advised that a

comment is best assured of having its full effect if it is received by

the Office of Management and Budget (OMB) within 30 days of

publication.

ADDRESSES: Interested persons are invited to submit comments regarding

this proposed rule to the Rules Docket Clerk, Office of General

Counsel, room 10276, Department of Housing and Urban Development, 451

7th Street, SW, Washington, DC 20410-0500. Communications should refer

to the above docket number and title. Facsimile (FAX) comments are not

acceptable. A copy of each communication submitted will be available

for public inspection and copying between 7:30 a.m. and 5:30 p.m.

weekdays at the above address.

Comments on the proposed information collection requirements must

refer to FR-3482, Requirements for Notification, Evaluation and

Reduction of Lead-Based Paint Hazards in Federally Owned Residential

Property and Housing Receiving Federal Assistance, and must be sent to:

Joseph F. Lackey, Jr., HUD Desk Officer, Office of Management and

Budget, New Executive Office Building, Washington, DC 20503

and

Reports Liaison Officer, Office of Lead-Based Paint Abatement and

Poisoning Prevention, Department of Housing & Urban Development, 451

7th Street SW., Room 4244, Washington, DC 20410.

FOR FURTHER INFORMATION CONTACT: For further information on part 36 in

the proposed rule, contact Joan Catherine Tetrault, and for further

information on part 37 of the proposed rule contact Conrad Arnolts. The

address for both of these persons is: Office of Lead-Based Paint

Abatement and Poisoning Prevention, Department of Housing and Urban

Development, 451 7th Street, SW, Room B-133, Washington, DC 20410-0500,

Telephone: (202) 755-1805, E-mail: Joan__C.__T[email protected], or

Conrad__C.__A[email protected]. For legal questions, contact Kenneth A.

Markison or John B. Shumway, Office of General Counsel, Room 9262,

Department of Housing and Urban Development, Telephone: (202) 708-9988,

E-mail: John__B.__S[email protected]. For hearing- and speech-impaired

persons, these numbers may be accessed via TTY (text telephone) by

calling the Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act Statement

The information collection requirements contained in sections

36.63, 36.64, 36.70, 36.84, 36.144, 36.162, 36.164, 36.168, 36.170,

36.188, 36.208, 36.230, 36.232, 36.256, 36.274, 36.276, 36.284, 36.294,

and 36.302 of this proposed rule have been submitted to the Office of

Management and Budget (OMB) for review under the Paperwork Reduction

Act of 1995 (44 U.S.C. 3501-3520). An agency may not conduct or

sponsor, and a person is not required to respond to, a collection of

information unless the collection displays a valid control number.

Information on the estimated public reporting burden and where to

send comments is provided under the preamble heading, Other Matters.

OMB is required to make a decision concerning the collection of

information contained in these proposed regulations between 30 and 60

days after publication of this document in the Federal Register.

Therefore, a comment to OMB is best assured of having its full effect

if OMB receives it within 30 days of publication. This does not affect

the deadline for the public to comment on the proposed rule.

II. Background

A. Lead Poisoning

Childhood lead poisoning is ``the most common environmental disease

of young children,'' (``Strategic Plan for the Elimination of Lead

Poisoning'', Centers for Disease Control (``CDC''), U.S. Department of

Health and Human Services, Atlanta, Georgia, 1991) eclipsing all other

environmental health hazards found in the residential environment

(``The Nature and Extent of Lead Poisoning in Children in the United

States: A Report to Congress'', Agency for Toxic Substances and Disease

Registry, U.S. Department of Health and Human Services, Atlanta,

Georgia, 1988) (hereafter ``ATSDR, 1988''). Lead is highly toxic and

affects virtually every system of the body. At high exposure levels,

lead poisoning can cause coma, convulsions, and death. While adults can

suffer from excessive lead exposures, the groups most at risk are

fetuses, infants, and children under age six. At low levels, the

neurotoxic effects of lead have the greatest impact on children's

developing brains and nervous systems, causing reductions in IQ and

attention span, reading and learning disabilities, hyperactivity, and

behavioral problems (Davis, J.M., R. Elias and L. Grant ``Current

Issues in Human Lead Exposure and Regulation

[[Page 29171]]

of Lead'', Neurotoxicologist, 14(2-3):1528, 1993). These effects have

been identified in many carefully controlled research studies

(``Measuring Lead Exposure in Infants, Children and Other Sensitive

Populations'', Committee on Measuring Lead in Critical Populations,

Board on Environmental Studies and Toxicology, Commission on Life

Sciences, National Academy of Sciences, 1993). However, the vast

majority of childhood lead-poisoning cases go undiagnosed and

untreated, since most poisoned children have no obvious symptoms.

Although significant declines have been observed in the overall

mean blood lead levels of children, which can be attributed to Federal

Government actions resulting in the removal of lead from gasoline and

soldered cans, approximately 1.7 million children are estimated to have

blood lead levels high enough to be of a health concern. Lead poisoning

affects children across all socioeconomic strata and in all regions of

the country. However, because lead-based paint hazards are most severe

in older housing in disrepair, the poor in inner cities are

disproportionately affected. In some inner city communities, over half

of all young children have lead levels exceeding the CDC threshold of

concern (10 micrograms per deciliter). Nationwide, African-American

children of low and middle income families are twice as likely to be

lead poisoned as white children of similar income families (Phase I of

the Third National Health and Nutrition Examination Survey, NHANES III,

1988-1992, as reported in the Journal of American Medical Association,

July 27, 1994).

Today, children in the United States are lead poisoned primarily

through ingestion by normal hand-to-mouth activity and, to a lesser

extent, inhalation. Because lead is ubiquitous in industrial societies,

there are many sources and pathways of lead exposure. The foremost

source of childhood lead exposure in the United States today is lead-

based paint and the accompanying lead-contaminated dust and soil found

in and around older houses (``Preventing Lead Poisoning in Young

Children'', CDC, U.S. Department of Health and Human Services, Atlanta,

Georgia, 1991; Rabinowitz, M., J. Leviton, H. Needleman, D. Bellinger

and C. Waternaux, ``Environmental Correlates of Infant Blood Lead

Levels in Boston'', Environmental Research 38:96-107, 1985). As early

as 1897, lead-based paint was identified as a cause of childhood lead

poisoning (Turner, 1897). Many countries prohibited the use of lead in

residential paints as far back as 1922 (Rabin, R., ``Warnings Unheeded:

A History of Lead Poisoning'', American Journal of Public Health

79:1668-1674, 1989). Lead was a major ingredient in most interior and

exterior house oil-based paints prior to 1950, with some paints

containing as much as 50 percent lead by dry weight. In the early

1950s, other ingredients became more popular, but some lead pigments,

corrosion inhibitors, and drying agents were still used.

In the 1950's and 1960's, several large cities in the United States

banned the use of lead-based paint (using varying definitions) on

interior surfaces in residential structures. In 1955, the paint

industry adopted a voluntary standard limiting the use of lead in

interior paints to no more than 1 percent by weight of nonvolatile

solids. In 1972, HUD prohibited the use of lead-based paint (at the 1

percent standard) in HUD-associated housing. In 1972, the Consumer

Product Safety Commission (``CPSC'') reduced the acceptable lead

content in residential paint to 0.5 percent, and in 1978 subsequently

banned the sale of residential paint containing greater than 0.06

percent lead. CPSC also prohibited the use of such paint in residences

and other areas where consumers have direct contact with painted

surfaces.

HUD estimates that three-quarters of pre-1980 dwelling units

contain some lead-based paint. The likelihood, extent, and

concentration of lead-based paint all increase with the age of the

building. Fully 90 percent of privately owned dwelling units

constructed before 1940 contain some lead-based paint, 80 percent of

dwelling units constructed between 1940 and 1959, and 62 percent of

dwelling units constructed between 1960 and 1979 (``Comprehensive and

Workable Plan for the Abatement of Lead-Based Paint in Privately-Owned

Housing: A Report to Congress'', U.S. Department of Housing and Urban

Development, Washington, D.C., December 7, 1990). Because the greatest

risk is in residential property constructed before 1960, older property

generally commands a higher priority for lead hazard controls. However,

there is evidence that significant amounts of lead-based paint were

sold as late as 1971, when New York City's Health Department tested 78

``new'' residential paints and found eight of them to have lead ranging

from 2.6 percent to 10.8 percent (Bird, D., ``High Lead Paints Listed

by City'', NY Times, August 4, 1971:18).

For many years, the conventional belief was that in order to be

poisoned children must eat lead paint chips. More recent medical

research has determined that the most common cause of childhood lead

exposure is the ingestion, through hand-to-mouth transmission, of lead-

contaminated surface dust (Clark, C.S., R. Bornschein, P. Succop, S.

Roda and B. Peace, ``Urban Lead Exposures of Children in Cincinnati,

Ohio'', Journal of Chemical Speciation and Bioavailability, 3(\3/4\):

163-171, 1991; Bellinger, D., J. Sloman, A. Leviton, M. Rabinowitz, H.

Needleman and C. Waternaux, ``Low Level Lead Exposure and Children's

Cognitive Function in the Preschool years'', Pediatrics, (87):219-227,

1991). Lead-contaminated dust may be so fine that it cannot be seen by

the naked eye. In addition, lead-contaminated dust is difficult to

clean up. Leaded dust is generated when lead-based paint is damaged by

moisture, abraded on friction and impact surfaces, or is disturbed in

the course of repainting, renovation, repair, or abatement. Lead can

also be tracked into homes from exterior dust and soil.

Children can also be exposed to lead found in bare soil. High

levels of lead in soil around the foundation of a house may come from

the scraping and repainting of exterior lead-based paint or simply the

deterioration of such paint (Ter Harr, G. and R. Arnow, ``New

Information on Lead in Dirt and Dust as Related to the Childhood Lead

Problem'', Environmental Health Prospectives, May, 1974:83-89; Linton,

R.W., D.F.S. Natush, R.L. Solomon and C.A. Evans, ``Physicochemical

Characterization of Lead in Urban Dusts: A Microanalytical Technique to

Lead Tracing'', Environmental Science Technology, 14:159-164, 1980).

Soil is also contaminated with lead by the fallout of lead emissions

from the combustion of leaded automobile gasoline and from industrial

sources (ATSDR, 1988, supra). In some areas, high leaded soil levels

result from factory and smelter emissions or deteriorating lead-based

paint on steel structures, such as bridges. Bare soil that is

contaminated with lead poses a hazard to children who play in it.

Based on the belief that children had to eat lead-based paint chips

to be poisoned, the typical response to lead poisoning during the 1970s

and early 1980s consisted of removing deteriorated and/or accessible

lead-based paint by scraping, uncontrolled sanding, or open flame

burning, all of which generated large amounts of lead dust. Approaches

differed slightly from city to city. Some cities required removal of

all lead-based paint to a certain height, such as 5 feet; others

required only that deteriorating paint be removed. However, these

traditional

[[Page 29172]]

abatements had one common characteristic: little attention was paid to

controlling, containing and cleaning up leaded dust. In many cases,

these paint removal methods actually aggravated the problem, increasing

lead exposures and poisoning workers and children in the process.

Several studies found that uncontrolled abatement and inadequate

cleanup caused increased blood lead levels (Farfel, M. and J.J.

Chisolm, Jr, ``Health and Environmental Outcomes of Traditional and

Modified Practices for Abatement of Residential Lead-Based Paint'',

American Journal of Public Health, 80:10,1240-1245, 1990;; Rabinowitz,

M., A. Leviton and D. Bellinger, ``Home Refinishing, Lead Paint and

Infant Blood Lead Levels'', American Journal of Public Health,

75(4):403-404, 1985; Amitai, Y., J.W. Graef, M.J. Brown, R.S. Gerstle,

N. Kahn and P.E. Cochrane, ``Hazards of Deleading Homes of Children

with Poisoning'', American Journal of Diseases of Children, 141:758-

760, 1987). The Department's Lead-Based Paint: Guidelines for Hazard

Identification and Abatement in Public and Indian Housing, (1990)

(``Interim Guidelines'') properly emphasized the danger of lead-

contaminated dust and the need for worker protection and thorough

cleanup.

Title X redefines the concept of ``lead-based paint hazards.''

Under prior Federal legislation, a lead-based paint hazard was defined

as any paint greater than or equal to one milligram per square

centimeter (mg/cm2) of lead, regardless of its condition or location.

Title X states that a lead-based paint hazard is ``any condition that

causes exposure to lead from lead-contaminated dust, lead-contaminated

soil or lead-contaminated paint that is deteriorated or present in

accessible surfaces, friction surfaces, or impact surfaces that would

result in adverse human health effects.'' Thus, under this definition,

intact lead-based paint on most walls and ceilings is not considered a

``hazard,'' although the condition of the paint should be monitored and

maintained to ensure that it does not become deteriorated. While most

efforts to address lead hazards in residential property will now be

aimed at reducing lead-based paint hazards as defined by Title X,

Federal law makes one notable exception: in public and Indian housing

all lead-based paint and lead-based paint hazards must be abated during

modernization.

Title X defines two methods of identifying or ``evaluating'' lead-

based paint hazards or lead-based paint. One method, ``risk

assessment'', includes wipe sampling and other environmental sampling

to identify lead-based paint hazards. The other, ``inspection'' (or

``paint inspection''), determines the presence only of lead-based

paint. Lead-based paint hazard evaluation may also be accomplished by a

combination of the two methods. The combination approach results in an

identification of all lead-based paint and lead-based paint hazards.

Title X provides for three types of lead-based paint hazard control:

interim controls, abatement of lead-based paint hazards, and complete

abatement of all lead-based paint. Interim controls are ``measures

designed to reduce temporarily human exposure or likely exposure to

lead-based paint hazards.'' Abatement means ``a set of measures

designed to permanently eliminate lead-based paint hazards'' or lead-

based paint. To ensure that lead-based paint hazard evaluation and

reduction is carried out safely and effectively, Title X imposes new

requirements for consistency and quality control.

B. Legislative and Regulatory History

The existing lead-based paint regulations pertaining to the

Department's programs, as well as to all federally owned residential

property, were written pursuant to the passage of the Lead-Based Paint

Act, as amended prior to 1992. This legislation required the Secretary

to ``establish procedures to eliminate as far as practicable the

hazards of lead-based paint poisoning with respect to any existing

housing which may present such hazards and which is covered by an

application for mortgage insurance or housing assistance payments under

a program administered by the Secretary.'' HUD interpreted the phrase

``housing assistance payments'' broadly and therefore in 1976 the

Department drafted regulations to eliminate the hazards of lead-based

paint for virtually all of its programs. Part 35 of the Department's

regulations in Title 24 was promulgated setting forth general

procedures for the inspection and treatment of defective paint surfaces

in all HUD-associated housing. Subsection 35.5(c), however, gave each

Assistant Secretary the authority to develop regulations pertaining to

their specific areas of responsibility, and varying program regulations

concerning lead-based paint now exist throughout Title 24.

The Department's lead-based paint regulations have been amended

from time to time in response to changes in the law, court orders and

increased knowledge about the hazards and treatment of lead-based

paint. The most recent Department-wide regulatory revisions pertaining

to lead-based paint were made in 1986, 1987 and 1988. Some additional

revisions specific to the public and Indian housing programs were

issued in 1991.

On May 12, 1994, at 59 FR 24850, the Department published a

proposed rule for comment that was intended to be the first phase of a

process to revise HUD's lead-based paint regulations. In this first

phase, HUD intended to remedy inaccuracies in existing regulations and

respond to advancements in the state of knowledge in the field of lead-

based paint testing and hazard reduction. The proposed rule did not

reflect changes in the Title X amendment to the Lead-Based Paint Act.

However, many of the public comments the Department received on this

proposed rule reflected a misimpression that the proposed rule was

intended to implement Title X. Other comments were impatient with HUD

and felt strongly that the Department should devote its resources to

implementing the new legislation, rather then making minor adjustments

to the existing regulations. The Department agreed and consequently the

May 12, 1994 proposed rule was withdrawn. The proposed changes to the

regulations, where consistent with Title X, have been incorporated into

this rulemaking.

Title X represents a new and sweeping approach to the problem of

lead-based paint poisoning of children, necessitating a comprehensive

revision of HUD's lead-based paint regulations. Title X amends what had

previously been general language contained in the Lead-Based Paint Act

and sets out specific requirements for federally owned residential

property and housing receiving Federal assistance. Title X stresses

identification of hazards, notification to occupants of the existence

of these hazards, and, in many cases, interim control and monitoring of

lead-based paint hazards, although abatement of lead-based paint

hazards is not precluded. This proposed rule also reflects current

knowledge of the causes of lead poisoning and current lead-based paint

hazard evaluation and reduction technologies and practices. The

presence of lead-based paint will be more accurately identified, with

fewer false negatives or false positives. Likewise, the existence,

nature, severity and location of lead-based paint hazards (in dust,

soil and deteriorated paint) will be more accurately identified and

reported. By improving lead-based paint hazard evaluation, decisions

about hazard reduction activities will be more fully informed and

available resources will be better targeted to reduce

[[Page 29173]]

exposure to occupants and to the environment.

III. HUD Reinvention

In 1993 the Department launched a major restructuring, or

reinvention, to meet the changing housing and development needs of

communities across the country. HUD's reinvention efforts took place in

the context of a broader, government-wide reinvention process, the

National Performance Review, initiated by President Clinton and Vice-

President Gore. The Department's proposed reinvention process will

consolidate HUD programs by replacing numerous individual programs,

each imposing its own prescriptive rules and requirements, with far

fewer streamlined funds, which would stress performance-based

objectives. These new funds will give State and local decision makers

maximum flexibility to tailor Federal resources in response to local

circumstances, needs and priorities. The Department also proposes to

phase out direct public housing subsidies to housing agencies,

converting the funds to tenant-based rental assistance that will allow

residents an expanded choice of housing. Finally, the Department's

reinvention will transform the Federal Housing Administration (FHA)

into a business-like, government-owned corporation, enabling it to work

more effectively and improve its efficiency.

In order to keep pace with the changes HUD is undertaking, the

Department's program regulations must also change. Although the

proposed lead-based paint rule was developed to implement the statutory

requirements of Title X for federally owned residential property and

housing receiving Federal assistance, the Department saw this as an

opportunity to revise all of its lead-based paint regulations to keep

pace with changes in lead-based paint technology and in HUD service

delivery.

The proposed rule consolidates numerous lead-based paint

regulations found throughout HUD's program regulations into two parts

(parts 36 and 37) of title 24 of the Code of Federal Regulations. At

the final rule stage, the Department will consider combining all of its

lead-based paint regulations into one part of the Code of Federal

Regulations.

The Department is seeking to eliminate redundant lead-based paint

regulations and to achieve a measure of consistency among the lead-

based paint requirements for different HUD programs, recognizing that

HUD clients often receive funding from several HUD programs and must

juggle separate and sometimes inconsistent sets of program regulations.

Furthermore, the Department is engaged in a larger effort to streamline

and eliminate unnecessary regulations, as part of the reinvention of

HUD, and the extent to which this larger effort may impact our

objective to eliminate unnecessary lead-based paint regulations is not

yet clear. As a result, the Department has not included as part of this

proposed rule the specific deletions of lengthy lead-based paint

program regulations and new references and cross citations to parts 36

and 37. These deletions, as well as new references and cross citations

also will be added during final rulemaking.

The proposed rule groups HUD programs by the type of assistance

provided. This was done to ease the burden on HUD clients in locating

the lead-based paint requirements that correspond to the type of

assistance they receive. For instance, a client receiving HUD funds for

rehabilitation will find only one rehabilitation subpart, rather than a

rehabilitation subpart for multifamily property and a separate subpart

on rehabilitation using HOME or CDBG funds. In addition, grouping HUD

programs by type of assistance allows the Department greater

flexibility as it consolidates many individual programs into the three

performance-based funds. For example, the proposed rule has a subpart

for public housing as it now exists and a subpart for tenant-based

rental assistance. If a conversion of public housing subsidies to

tenant-based rental assistance occurs, the appropriate lead-based paint

requirements will already be in place.

Finally, the proposed rule reflects HUD's efforts to balance the

practical need for cost-effective, affordable lead-based paint hazard

notification, evaluation and reduction measures with the statutory

requirements of Title X as well as with HUD's duty to protect children

living in a residential property that is owned or assisted by the

Federal government from lead-based paint poisoning. Where possible, the

proposed rule provides opportunities for HUD clients to implement

hazard reduction measures that will best meet the needs of their

communities. For example, in subpart B of part 36, States, Indian

tribes and insular areas that meet certain eligibility criteria have

the opportunity to develop their own lead-based paint procedures and

localities located in such a State have the option of adopting these

State procedures (See Section VII A.3 of the Preamble below).

IV. Public Input on Rulemaking

Consistent with Executive Order 12866, HUD has increased public

participation in the regulatory development process. Because of the

magnitude of the changes required in HUD's lead-based paint proposed

rule and the potential impact of these changes, public involvement was

crucial to the rulemaking process. The three main avenues for public

involvement in the development of the proposed rule were the HUD

Guidelines for the Evaluation and Control of Lead-Based Paint Hazards

in Housing (June 1995) (``HUD Guidelines''), the recommendations from

the Task Force on Lead-Based Paint Hazard Reduction and Financing, and

three major meetings of HUD clients to seek input on the implementation

of Title X.

A. HUD Guidelines

The HUD Guidelines were mandated by Section 1017 of Title X. They

were developed by housing, public health and environmental

professionals with broad experience in lead-based paint hazard

identification and control. The HUD Guidelines form the basis for many

of the lead-based paint hazard evaluation and reduction methods

described in Part 37 of the proposed rule, and are intended to help

property owners, government agencies and private contractors sharply

reduce children's exposure to lead-based paint, without adding

unnecessarily to the cost of housing.

B. Title X Task Force

The creation of the Title X Task Force on Lead-Based Paint Hazard

Reduction and Financing was also mandated by Section 1015 of Title X.

The Task Force submitted its recommendations, Putting the Pieces

Together: Controlling Lead Hazards in the Nation's Housing, to HUD

Secretary Henry Cisneros and EPA Administrator Carol Browner in July

1995. Members of the Task Force included representatives from Federal

agencies, the Federal Home Loan Mortgage Corporation, the Federal

National Mortgage Association, the building and construction industry,

landlords, tenants, primary lending institutions, private mortgage

insurers, single family and multifamily real estate interests,

nonprofit housing developers, property liability insurers, public

housing agencies, low-income housing advocacy organizations, lead-

poisoning prevention advocates and community-based organizations

serving communities at high-risk for childhood lead poisoning. The

mandate of the Task Force was to address sensitive issues related to

lead-based paint hazards in private housing, including standards of

hazard evaluation and control, financing hazard control activities, and

liability and insurance for rental property

[[Page 29174]]

owners and hazard control contractors. The Department used the Task

Force recommendations to guide the development of the lead-based paint

requirements for Section 8 tenant-based rental assistance programs set

forth in Part 36, subpart O, of the proposed rule.

C. Meetings with HUD Clients

Finally, the Department held three meetings with HUD clients on the

potential implications of Title X on HUD programs. The meetings

involved HUD constituents, grantees, and field staff of the Offices of

Public and Indian Housing (PIH), Community Planning and Development

(CPD), and Housing, as well as advocacy and tenant representatives.

Participants shared their thoughts on several Title X issues including:

risk assessment and interim controls, hazard reduction activities

during the course of rehabilitation, occupant notice of hazard

evaluation and reduction activities, and children with elevated blood-

lead levels. Additional written comments were accepted from

participants after the meetings. Participants' written comments, as

well as meeting transcripts, are available for public review between

7:30 a.m. and 5:30 p.m. weekdays, in the Office of the Rules Docket

Clerk, Office of General Council, U.S. Department of Housing and Urban

Development, 451 7th Street SW., Washington, DC 20410-0500.

V. Scope and Applicability.

A. Sections 1012 and 1013 of Title X

This proposed rule implements the requirements of the Lead-Based

Paint Act, as amended by Section 1012 and Section 1013 of Title X.

Section 1012(a) of Title X amends the first sentence of the Lead-Based

Paint Act to add the phrase ``or otherwise receives more than $5,000 in

project-based assistance under a Federal housing program'' so that 42

U.S.C. 4822(a) now reads as follows:

The Secretary of Housing and Urban Development * * * shall

establish procedures to eliminate as far as practicable the hazards

of lead-based paint poisoning with respect to any existing housing

which may present such hazards and which is covered by an

application for mortgage insurance or housing assistance payments

under a program administered by the Secretary or otherwise receives

more than $5,000 in project-based assistance under a Federal housing

program.

Section 1012 sets out minimum procedures for all ``target housing''

that falls within the three categories discussed above--mortgage

insurance, housing assistance payments or more than $5,000 in project-

based assistance. Target housing is defined in Title X as housing

constructed prior to 1978, except housing for the elderly or persons

with disabilities (unless any child who is less than 6 years of age

resides or is expected to reside) or any 0-bedroom dwelling unit. HUD

has interpreted the exceptions for elderly and disabled housing (See

Sec. 36.2) to apply only to residential property which is designated

exclusively for elderly or disabled use. After considerable discussion,

HUD has determined that it would be unworkable and contrary to the

intent of the statute to expand these exceptions to each particular

dwelling unit occupied by an elderly or disabled person, regardless of

its designation.

In the past, the Department has taken the position that the

requirements of the Lead-Based Paint Act applied only to new

applications for mortgage insurance or other types of housing

assistance, under any program administered by the Secretary. The

Department interprets the new phrase added by Section 1012(a), ``more

than $5,000 in project-based assistance under a Federal housing

program'', to cover any Federal housing program administered by any

Federal agency which provides project-based assistance. Consequently,

subpart I of Part 36 applies to both new and existing inventory

receiving project-based assistance under a HUD program, and subpart D

applies these requirements to other Federal agencies. Finally, although

Title X only requires the Secretary to establish lead-based paint

procedures for residential property receiving more than $5,000 in

project-based assistance, Subpart I includes additional minimal lead-

based paint procedures (i.e. the procedures for tenant-based rental

assistance) for multifamily property receiving less than $5,000 in

project-based assistance from HUD. The Department also applies these

minimal lead-based paint procedures to single family properties

receiving Section 8 Moderate Rehabilitation or Project-Based

Certificate assistance from HUD. The Department wants to extend some

limited lead-based paint protections to properties receiving minimal

project-based assistance and also wants to relieve single family owners

with limited financial resources from being required to comply with the

extensive lead-based paint requirements for project-based assistance.

These additional minimal procedures were not included in Subpart D for

project-based assistance provided by a Federal agency other than HUD.

Under Title X, Congress is silent with respect to whether the new

minimum procedures for lead-based paint hazard notification, evaluation

and reduction apply to tenant-based rental assistance and HUD's

examination of legislative intent is inconclusive. Congress did not

amend the first sentence of the Lead-Based Paint Act, set out above, to

delete or amend the phrase ``housing assistance payments.'' HUD has

historically interpreted this general phrase to cover virtually all

types of housing assistance, including tenant-based rental assistance--

the type of assistance that it seems to cover most obviously. The

legislative history for Title X states, however, that housing receiving

tenant-based rental assistance would be exempt from the Lead-Based

Paint Act, as amended by Title X. Congress was concerned that, due to

the tendency of residential properties to pass in and out of tenant-

based Federal assistance programs, it would be unworkable and

inequitable to impose greater burdens on owners of such properties than

on other private landlords. See Senate Committee on Banking, Housing,

and Urban Affairs, Senate Report 102-332, July 23, 1992 (hereafter,

``Senate Report 102-332'').

In HUD's view, Congress clearly did not intend for HUD to apply the

new minimum procedures for lead-based paint hazard notification,

evaluation and reduction set out in Title X to tenant-based rental

assistance. However, HUD does not believe that Congress intended to

abolish HUD's current procedures, which serve to protect, in a minimal

way, the recipients of this type of housing assistance. Rather,

Congress may have intended for the Department to effectively retain its

present lead-based paint requirements for tenant-based rental

assistance. In its current regulations, HUD requires tenant-based

rental property occupied by families with children under six to meet

the minimal standard for lead-based paint found in its Housing Quality

Standards (HQS). In this proposed rule, then, HUD continues to require

tenant-based rental property to meet HQS. The Department, however,

modifies the lead-based paint requirements in HQS somewhat, in

accordance with the general approach of Title X, to require visual

evaluation, dust testing in some situations, paint repair, cleanup, a

response to an elevated blood level (EBL) child and related activities

in accordance with part 37.

Section 1013 amends 42 U.S.C. 4822(a)(3) to modify existing

requirements for the disposition (i.e. sale) of all residential

property constructed before 1978 and owned by a Federal agency.

Consequently, the Department includes here new subpart C of Part 36

which sets out these requirements concerning the disposition of all

federally owned residential

[[Page 29175]]

property. Elsewhere in Part 36, the Department sets out specific

requirements for the disposition of HUD-Owned Single Family and

Multifamily property.

Section 1013 adds 42 U.S.C. 4822(a)(3)(C), which states the

following: In the absence of appropriations sufficient to cover the

costs of subparagraphs (A) and (B) (which contain evaluation and

abatement requirements for pre-1960 housing, and evaluation and

notification requirements for housing constructed between 1960 and

1978), these requirements shall not apply to the affected agency or

agencies.

The Department interprets this language to state that HUD (and

other Federal agencies that own residential property covered herein)

need not comply with the requirements set out in Section 1013 if

sufficient funds are not provided to the agency for this purpose. In

the Department's view, it is consistent with the intent of Congress to

nevertheless make some effort to evaluate and treat deteriorated paint

in HUD-owned properties (similar to existing procedures), even if

funding is not made available to the Department to carry out more

extensive lead-based paint hazard evaluation and reduction. Since these

properties are owned by the Department, HUD feels that it has the

authority to adopt an alternative response to potential lead-based

paint hazards in the absence of sufficient appropriations. Therefore,

subparts F and G of part 36, for HUD-Owned Single Family Housing, and

subparts J and K of part 36, for HUD-Owned and Mortgagee-in-Possession

Multifamily Property, set forth alternative requirements when

appropriated money is available and when appropriated money is not

available. When appropriated money is available, the regulatory

requirements track the language of Section 1013. When appropriated

money is not available, alternative regulatory requirements are set

forth. Other agencies may also wish to develop alternative requirements

to those set out in part 36, subpart C, when appropriated monies are

not available.

B. Format

Throughout this proposed rule, lead-based paint hazard

notification, evaluation, and reduction requirements represent the

minimum activities that are required under this proposed rule; of

course, parties may wish to voluntarily undertake more extensive lead-

based paint activities. It should also be noted that throughout part

36, paint repair or interim controls of deteriorated paint surfaces are

required for various programs and cross references to the relevant

subparts of part 37 concerning treatment are included. These subparts

of part 37 each include a section describing a de minimis level of

paint deterioration, consistent with the HUD Guidelines, below which no

action is required. This de minimis level is defined as not more than

10 square feet of deteriorated paint on an exterior wall, not more than

2 square feet on a component with a large surface area other than an

exterior wall including, but not limited to, interior walls, ceilings,

floors and doors, or not more than 10 percent of the total surface area

on an interior or exterior component with a small surface area

including, but not limited to, window sills, baseboards and trim.

To avoid requiring evaluation efforts that may have already been

undertaken by property owners and to minimize costs, HUD has included

exemptions for required evaluation activities if equivalent or more

stringent evaluation activities have already been conducted and have

indicated the absence of lead-based paint or lead-based paint hazards.

The proposed rule also provides opportunities to forego evaluation

activities if certain lead-based paint hazard reduction measures

consistent with the requirements of parts 36 and 37 have been

conducted. In addition, where paint inspection or risk assessment are

required, the proposed rule provides the option to assume the presence

of lead-based paint or lead-based paint hazards or both and to perform

hazard reduction activities. Finally, the requirements of visual

evaluation, paint repair and cleanup do not apply if a suitable paint

inspection has already been completed indicating the absence of lead-

based paint (i.e. lead-free).

An owner or recipient of Federal assistance hoping to meet a lead-

free exemption may question whether correcting for possible false (or

outdated) positive findings during lead-based paint inspections is

permissible. The owner or recipient always retains the option of having

additional tests performed by certified paint inspectors. Nothing in

either the law or the proposed regulation is intended to revoke or

restrict that right. An additional test can sometimes clarify whether

or not lead-based paint is present. For example, if an owner or

recipient believed that a previous inspection had rendered a false

positive result (all measurement techniques involve some small degree

of sampling and analytical error), the owner or recipient could choose

to have a certified paint inspector retest the area in question. If the

additional testing by a certified paint inspector indicated that the

initial positive results were false (i.e., that there was in fact no

lead-based paint present), then the owner or recipient would qualify

for a lead-based paint free exemption. Similarly, suppose an owner or

recipient first had a test done in 1982 using an X-ray fluorescence

(XRF) device that indicated the presence of lead-based paint. Because

testing procedures were less reliable at that time (standard practice

often failed to consider the effect of the substrate underneath the

paint, or the accuracy of the measurement and instrument calibration

checks were often deficient), the owner or recipient might choose to

conduct a new test using the improved methodology available today. If

this second test indicated that lead-based paint was not present, then

the owner or recipient would qualify for a lead-based paint free

exemption. As a third example, an owner or recipient who had all lead-

based paint removed from a property following an earlier inspection

could choose to have a new inspection or clearance examination

conducted on the abated property. If the new information indicated that

lead-based paint was no longer present, then the owner or recipient

would qualify for a lead-based paint free exemption. In all three

cases, if the second test confirmed the original findings, or if the

test was not conducted by a certified paint inspector, an exemption

would not be available.

As stated above, the proposed rule sets forth new parts 36 and 37

that, together with part 35, subpart H, comprise all of HUD's

regulatory requirements for lead-based paint in a single place. The

numerous lead-based paint requirements set out in various program

regulations will be deleted. Part 36 describes the lead-based paint

requirements for each program covered under the Lead-Based Paint Act,

grouped according to the manner in which program responsibility is

divided in the Department and according to the relevant requirements.

The requirements for single family and multifamily property appear

separately. There are two single family property disposition subparts

and two multifamily property disposition subparts--one if

appropriations are sufficient and one if appropriations are not

sufficient. There are also separate subparts for single family insured

property and multifamily insured property, and for project- and tenant-

based rental assistance programs. There is one rehabilitation subpart

and one subpart for CPD non-rehabilitation programs. The requirements

for public and Indian housing are located in a

[[Page 29176]]

single subpart. There is also a subpart that provides alternative

procedures for States receiving Federal housing assistance, or

operating a Federal housing assistance program. Finally, the

requirements for properties owned by, or receiving project-based

assistance from, a Federal agency other than HUD are set out in two

subparts.

The program requirements set out in part 36 specifically reference

the procedural information for conducting lead-based paint hazard

evaluation and reduction activities included in part 37. Part 37

distills the extensive information found in the HUD Guidelines, in

subparts on paint inspection, risk assessment, interim controls,

abatement, occupant protection, worksite preparation, cleanup,

clearance and monitoring. As stated in the discussion of HUD's

Reinvention efforts, the Department is considering a more performance-

based approach to its lead-based paint hazard evaluation and reduction

requirements, and may consolidate parts 36 and 37 in the final rule.

The Department requests comments on the format of the proposed rule, as

well as the content.

C. Effective Date and Qualifications for Conducting Lead-Based Paint

Hazard Evaluation and Reduction Activities

The proposed effective date of these regulations is one year after

the date of publication of the final rule in the Federal Register. HUD

anticipates that a final lead-based paint rule will be published by

September 1996. In determining an appropriate effective date, the

Department considered two options: the date of publication of the final

rule and 12 months after publication of the final rule.

The argument in favor of an immediate effective date is that Title

X (Sections 1012 and 1013) requires the evaluation and reduction of

lead-based paint hazards in housing receiving Federal assistance and

residential property owned by the Federal government to take effect on

January 1, 1995; any further delay in implementing these requirements

would pose a risk to the health of children. The argument against an

immediate effective date is that program administrators at all levels

of government, as well as property owners and contractors performing

lead-based paint activities, would not have adequate education and

training time to implement the new technical standards, requirements

and procedures required under the proposed regulation. The Department

is concerned that such a scenario would likely result in a delay in

implementing the new lead-based paint requirements, difficulty in

locating trained and certified workers, unreliable hazard evaluation

results, and unsafe and ineffective hazard control activities.

Further, the Department recognizes that HUD clients conducting

ongoing program activities will need time to incorporate, where

feasible, the new lead-based paint requirements into their programs.

HUD requests program-specific comments on the ``event'' to which the

effective date of the rule should be linked with regard to ongoing

program activities. Specifically, should HUD programs use (1) the date

of the funding agreement between the client and HUD; (2) the date of

the expenditure of HUD funds; (3) the date that the contract between

the project owner and the funding agency is signed; or is there another

more appropriate date?

An effective date of 12 months after publication of the final rule

was chosen by the Department as a way to allow all parties--lead-based

paint professionals, housing agencies, State and local government

agencies, and private property owners--time to prepare for proper

implementation of the new lead-based paint requirements. The effective

date will also coincide approximately with the conclusion of the two-

year period associated with EPA's training and certification

requirements, as discussed below. The Department shares the concern of

the public health community that further delays in implementing the

requirements will place more children at risk of lead-based paint

poisoning. However, it seemed impractical for HUD to establish an

immediate effective date for the proposed rule, knowing that the

infrastructure necessary to carry it out would not be fully in place.

The effective date issue is directly related to the qualifications

necessary for persons carrying out lead-based paint hazard evaluation

and reduction activities. The proposed rule requires that virtually all

lead-based paint hazard evaluation and abatement activities required in

part 36 be conducted by individuals and firms that are certified in

accordance with the new EPA requirements for lead-based paint

activities, developed pursuant to Section 1021 of Title X (adding

Sections 402 and 404 of the Toxic Substances Control Act (TSCA). The

EPA training and certification regulations were published as a proposed

rule on September 2, 1994, and are expected as of this writing to be

published as a final rule in 1996. States must have EPA approved

training and certification programs in place within two years of

publication of the final EPA rule. The EPA regulation will greatly

affect the availability of individuals and firms that are trained and

certified to conduct lead-based paint activities in each State. If the

certification programs of the States and EPA have not developed

sufficiently by the time HUD's new lead-based paint rule takes effect,

the Department will need to consider temporary qualifications for

persons conducting lead-based paint hazard evaluation and reduction

activities. The Department requests comments on the certification

requirement as well as the effective date.

It should be noted that in part 36, subpart N, public and Indian

housing agencies (``HAs'') conducting dust and soil testing for public

and Indian housing are not required to be certified in accordance with

the new EPA requirements for lead-based paint activities. The

Department recognizes that this is inconsistent with the general

approach of the proposed rule. However, HAs were required to complete

paint inspections by December 6, 1994 and many HAs have already taken

the initiative to conduct risk assessments in housing projects.

Therefore, in the Department's view, it is illogical to impose new

certification requirements for evaluation activities conducted in

public and Indian housing. Furthermore, the legislative history for

Title X indicates that Congress did not intend for the new procedures

set out under Title X to disrupt already ongoing public and Indian

housing lead-based paint activities. Since the Department has not

applied certification requirements to evaluation activities conducted

by HAs, additional descriptive material concerning soil and dust

testing has been added to subpart B of part 37. Further, HUD did not

extend the certification requirement to dust testing conducted by HAs

for the Section 8 tenant-based rental assistance program. However, a

risk assessment, conducted in response to an identified EBL child, must

be conducted by a certified risk assessor in accordance with 24 CFR

part 37. HUD requests public comment on the issue of whether

certification requirements for evaluation activities should be applied

to HAs.

VI. Definitions

In order to implement Section 1012 and Section 1013 of Title X,

certain terms need to be defined. To avoid redundancy, definitions used

throughout both parts 36 and 37 are included in subpart A of part 36.

Terms that are only used in a particular subpart are defined in that

subpart.

[[Page 29177]]

Where possible, HUD has drawn definitions directly from Section

1004 of Title X. In cases where the statute either failed to define

terms or where the definition was inadequate, the Department has drawn

definitions from the HUD Guidelines, existing HUD or EPA regulations

(as well as EPA proposed regulations promulgated pursuant to Title X),

the National Institute of Building Sciences (``NIBS'') Lead-Based Paint

Operations and Maintenance Work Practices Manual, and from definitions

compiled and set forth by the American Society for Testing and

Materials (ASTM) in a document entitled ``Standard Terminology Relating

to Abatement of Hazards from Lead-Based Paint in Buildings and Related

Structures''. HUD will accept comments on all definitions not taken

directly from the statute.

VII. General Requirements

A. Part 36

1. Cross Cutting Issues

The requirements described below apply, in varying degrees, to HUD

programs, as well as to some programs of other Federal agencies,

covered under Part 36.

(a) Pamphlet. Section 1012 of Title X amends the Lead-Based Paint

Act to add new subparagraph 42 U.S.C. 4822(a)(1)(A), which requires the

provision of a lead-based paint hazard information pamphlet (``lead

hazard information pamphlet'') to all purchasers and tenants of housing

receiving Federal assistance. The lead hazard information pamphlet must

be the one developed by EPA pursuant to Section 406 of TSCA (added

pursuant to Section 1021 of Title X).

The lead hazard information pamphlet mandated by Section 406 of

TSCA contains certain information, such as the health risks associated

with exposure to lead, the presence of lead in residential property,

approved and recommended methods of evaluation and reduction of lead-

based paint hazards, how to obtain a list of certified evaluation and

reduction contractors, and an informational statement that State and

local governments may impose additional lead-based paint requirements.

Section 1018 of Title X also contains a lead hazard information

pamphlet requirement. Under Section 1018, all sellers and landlords of

virtually all pre-1978 target housing are required to provide

purchasers and tenants with the same lead hazard information pamphlet

prior to sale or lease. Since Section 1018 of Title X separately

requires all new purchasers and new tenants of target housing,

including federally owned residential property and housing receiving

Federal assistance, to receive the lead hazard information pamphlet,

the Department reads ``purchasers and tenants'' in new subparagraph 42

U.S.C. 4822(a)(1)(A) to cover ``all existing owner-occupants and

tenants that were residing in a residential dwelling unit covered by

this proposed rule prior to the effective date of the regulation

implementing Section 1018 of Title X,'' since these owner-occupants and

tenants would not have received the pamphlet upon initial occupancy.

The proposed rule avoids duplicating the requirements set out in

Section 1018 by not addressing situations in which the Department,

another Federal agency, or a recipient or subrecipient of Federal

housing assistance already has a duty as a seller or lessor to provide

the pamphlet to new purchasers or tenants. That requirement will be set

forth in 24 CFR Part 35, Subpart H.

(b) Notice. New subparagraph 42 U.S.C. 4822(a)(1)(F) of the Lead-

Based Paint Act requires the provision of notice to occupants

describing the nature and scope of any risk assessment, paint

inspection, or reduction activities undertaken. The Department has

interpreted this new provision to require the following: (1) Within 15

calendar days of receiving a risk assessment or paint inspection report

or both, a written notice must be provided to tenants containing a

summary of the nature, scope and results of the evaluation and a

contact for more information or access to the actual reports; and (2)

within 15 calendar days of completing hazard reduction activities, a

notice must be provided to tenants of the actual hazard reduction

activities conducted that contains a summary of the nature, scope and

results of the hazard reduction activities, a contact for more

information, and information on any remaining lead-based paint on a

surface-by-surface basis. This notice shall be updated, based on any

reevaluation of the dwelling unit or if additional lead-based paint

hazard reduction work is conducted. The notices must be posted in a

centrally located easily accessible common area or distributed to each

occupied dwelling unit, must be of a size and type that are easily

read, must be made available in an accessible format for persons with

disabilities, to the extent practicable, and if possible must be

provided in the tenant's primary language.

The language of 42 U.S.C. 4822(a)(1)(F) does not specifically

require that separate notices be provided to tenants, initially after

an evaluation has been conducted, and again after hazard reduction

activities have been undertaken. However, in the Department's view,

withholding information on the results of an evaluation until after

hazard reduction activities have been performed and the lead-based

paint hazard resolved, poses a serious risk to tenants. The sooner

tenants are provided with this information, the better they can protect

their children and themselves.

The notification requirements of 42 U.S.C. 4822(a)(1)(F) also do

not specify the manner in which the notices must be distributed. The

proposed rule provides the option of ``posting the notices in a

centrally located, easily accessible common area, or distributing it to

each occupied dwelling unit.'' In general, the Department believes that

matters of notice format and distribution are best determined by the

property owner or other recipient of Federal housing assistance. The

Department requests comment on the content, format and distribution of

the notices.

(c) Paint Repair. HUD's current lead-based paint regulations often

require visual inspection and ``treatment of defective paint

surfaces.'' That treatment usually consists of scraping deteriorated

paint and in some cases repainting. Paint repair under this proposed

rule involves similar visual evaluation and treatment for deteriorated

paint surfaces (when the deteriorated paint surface exceeds a de

minimis size), but additional safeguards are added. Unless a paint

inspection or risk assessment has indicated the absence of lead-based

paint, a deteriorated paint surface must be assumed to contain lead.

Therefore, when paint repair is conducted, the proposed regulation

requires various protections to ensure that the paint is repaired in a

manner that does not cause exposure to lead-based paint. The

requirements include: (1) The use of protective coverings on the floor

or ground; (2) occupant protections that entail restricted access to a

worksite until after all paint repair and cleanup have been completed;

(3) use of wet methods and other work practices to control leaded dust;

(4) surface preparation and cleaning before repainting; and (5) cleanup

of the worksite. These additional provisions will help to ensure that

lead-based paint hazards are reduced without unintended negative human

health or environmental consequences.

The paint repair requirements in this proposed rule often apply

where residential properties receive a minimum amount of housing

assistance from HUD, and the relationship between

[[Page 29178]]

HUD and the recipient of HUD assistance is not continuous. The subparts

of part 36 concerning HUD's single family and multifamily insured

programs require only paint repair, as well as the subpart concerning

HUD-owned properties without sufficient appropriations to carry out the

requirements of Section 1013 of Title X. Paint repair is also required

by CPD non-rehabilitation programs and the Department's tenant-based

rental assistance programs, though these programs have an additional

requirement of dust testing for residential properties built before

1950. In addition, HUD has extended the paint repair requirements to

residential properties that receive less than $5,000 in HUD funds for

rehabilitation, because these rehabilitation activities are limited and

the paint disturbance is minimal. Rather than requiring interim

controls or abatement activities for this category of rehabilitation,

the Department has chosen a ``do no harm'' policy that requires paint

repair and cleanup of the surfaces to be disturbed by rehabilitation.

(d) EBLs. The use of children with elevated blood lead levels

(EBLs) as a trigger to initiate evaluation or reduction of lead-based

paint hazards does not exist in any of the new requirements under Title

X. Rather, Congress makes clear that the Department is to focus on

preventing the poisoning of children, rather than reacting to children

with EBLs (See Section 566(a)(1), Housing and Community Development Act

of 1987 (``HCD Act of 1987'') (Pub. L. 100-242, enacted February 5,

1988); p. 243, Conference Report for the HCD Act of 1987 (Report 100-

426, November 6, 1987); and Title X, Senate Report 102-332). While the

Department's primary focus in this rule is on prevention, HUD feels a

special duty to children who have already been poisoned by lead-based

paint. HUD cannot ignore the possible connection between a child's EBL

and the condition of the dwelling unit where the child lives.

Therefore, in each subpart of Part 36 in which HUD maintains a

continuing relationship with the recipients of Federal housing

assistance, or where an EBL child resides in residential property owned

by the Federal government, additional requirements are included to

evaluate and reduce lead-based paint hazards when an EBL child is

identified. Often, the EBL requirements for a particular program are an

acceleration of the lead-based paint hazard evaluation and reduction

requirements for that program. In some instances, such as in the case

of tenant-based rental assistance, the EBL response may be more

stringent than the proposed requirements for that program.

In response to the United States General Accounting Office report

entitled ``Children in Section 8 Tenant-Based Housing are not

Adequately Protected'' (GAO/RCED-94-137, dated May 13, 1994), HUD has

also added language to the proposed rule requiring an HA or other

individual or organization (e.g. grantee or participating jurisdiction)

administering a Section 8 or CPD-funded tenant-based rental assistance

program, to the extent practicable, to attempt to obtain the names and

addresses of EBL children from local public health agencies on an

annual basis. They would then match this information with the names and

addresses of families receiving tenant-based rental assistance. The

intent of this requirement is not for case-management of an EBL child,

but to ensure that families with young children that receive Section 8

tenant-based rental assistance are obtaining housing free of lead-based

paint hazards. At the same time, the Centers for Disease Control and

Prevention (``CDC'') is urging local public health agencies to provide

EBL-related information to HAs. While the Department understands the

value of sharing EBL information, we would like to receive public

comment concerning two issues: (1) Does this requirement impose an

undue administrative burden on the individual or organization

administering the tenant-based rental assistance program? (2) Does this

requirement adversely impact the privacy rights of families receiving

tenant-based rental assistance?

(e) Other Required Practices. Depending on the type of activity

conducted and the degree of Federal involvement, the parties that are

required to perform lead-based paint hazard evaluation and reduction

activities must also perform certain protective activities such as

occupant protection, worksite preparation, cleanup, clearance,

monitoring, and control of new hazards. With respect to paint repair,

specific protective activities are included in subpart D of Part 37.

Further, the parties that are required to perform lead-based paint

hazard evaluation and reduction activities may be subject to Department

of Labor worker protection requirements set out at 29 CFR 1926.62, and

EPA waste disposal requirements set out at 40 CFR 260-270. These

requirements are not described in Part 37.

2. Subpart A--General Requirements

Subpart A sets out general requirements for all federally owned

residential property and housing receiving Federal assistance. This

subpart includes a provision concerning the scope of part 36, as well

as general exemptions from coverage under part 36. These exemptions

include (1) residential property constructed on or after January 1,

1978; (2) single room occupancy (SRO) dwelling units; (3) residential

property designated exclusively for the elderly or persons with

disabilities, unless a child who is less than six resides or is

expected to reside (the Department interprets the phrase, ``a child who

is less than six * * * is expected to reside,'' to include any pregnant

woman residing in a dwelling unit constructed before 1978 that is

covered under this subpart); (4) residential property undergoing

emergency repairs in response to a natural disaster; and, (5)

residential property required to undergo visual evaluation, paint

repair and cleanup for which documentation is provided that a paint

inspection has been completed in accordance with part 37 and indicates

the absence of lead-based paint on all surfaces. The subpart sets out a

general provision for parties required to undertake paint inspection or

risk assessment, whereby they may choose to assume the presence of

lead-based paint or lead-based paint hazards or both and to conduct

hazard reduction activities. There is also a provision allowing for a

reasonable delay for evaluation, paint repair, hazard reduction or

abatement activities on exterior painted surfaces due to unsuitable

weather conditions.

Subpart A also includes provisions concerning the following: a

prohibition against the use of paint containing more than 0.06 percent

by weight of lead in federally owned residential property and housing

receiving Federal assistance; prohibited methods of paint removal;

compliance with Federal laws and authorities; compliance with State and

local laws, ordinances, codes or regulations governing lead-based

paint; a statement that Part 36 is intended to set out the Department's

minimum requirements for notification, evaluation and reduction of

lead-based paint hazards and that these requirements do not preclude

the recipient of Federal assistance from conducting more rigorous

activities; Secretarial waivers; and the consequences of noncompliance

with the requirements of parts 36 and 37. Terms which are used

throughout parts 36 and 37 are defined in this subpart.

[[Page 29179]]

3. Subpart B--State Procedures

This subpart allows States, Indian tribes and insular areas that

are recipients of Federal housing assistance or that are administering

a Federal housing assistance program established by the Secretary, to

develop their own alternative lead-based paint procedures to implement

Federal requirements for evaluating and reducing lead-based paint and

lead-based paint hazards in the following programs: (1) Rehabilitation

and (2) Community Planning and Development (CPD) non-rehabilitation.

HUD requirements for these programs are set out in subparts L and M of

part 36 and in the relevant subparts of part 37. Specifically, subpart

B identifies the minimum HUD requirements for each of these programs,

but permits States, Indian tribes and insular areas to determine how

best to meet these requirements. For instance, Title X requires

abatement of lead-based paint hazards in the course of rehabilitation

projects receiving more than $25,000 per unit in Federal funds. Under

subpart B, an eligible State, Indian tribe or insular area is permitted

to establish its own abatement procedures, as long as the clearance

standards set out in subpart B are met. This subpart is intended to

provide States, Indian tribes and insular areas with latitude in

developing lead-based paint hazard reduction measures that are as

protective as Federal requirements, but which may be better suited to

the specific economic and technological needs of that unit of

government.

In order to qualify under this subpart, a State shall have in place

a certification program for individuals and firms engaged in lead-based

paint activities which has been approved by EPA pursuant to Sections

402 and 404 of TSCA. A State shall also have in place alternative

evaluation and hazard reduction procedures that have been approved by

the Secretary prior to implementation of the procedures. Further HUD

approval is required if the State procedures are substantially modified

at any time after implementation. A unit of general local government

located in a State that has HUD-approved alternative lead-based paint

procedures may also adopt these procedures or choose to follow the

applicable provisions of parts 36 and 37.

In developing its own lead-based paint procedures, a State shall

adhere to general requirements set out in subpart B concerning the

lead-based paint hazard information pamphlet, notice of risk

assessment, paint inspection, paint repair and hazard reduction

activities, prohibited practices and occupant protection. Specific

minimum requirements for each program covered under subpart B and

clearance standards for dust and soil tests established by HUD are also

set out. These requirements and clearance standards must be

incorporated into a State's alternative procedures. In preparing this

subpart, the Department received input concerning the possibility of

alternative evaluation and reduction procedures for States during

meetings with HUD clients (discussed in Paragraph IV C above). HUD

requests additional comments concerning this subpart, from State

officials in particular, and from the general public.

4. Subpart C--Disposition of Residential Property Owned by a Federal

Agency other than HUD

This subpart establishes minimum lead-based paint requirements for

residential property built before 1978 that is owned and to be sold by

a Federal agency other than HUD, and is consequently subject to the

requirements of Section 1013 of Title X. The subpart basically restates

the requirements set out in Section 1013, with minimal elaboration. The

Department believes that the details of how another Federal agency

should carry out the requirements of Section 1013 are best determined

by the affected agency. At a minimum, for residential property

constructed prior to 1960, the Federal agency shall conduct a paint

inspection, risk assessment and abatement of all lead-based paint

hazards. Section 1013 does not specifically address when the abatement

of hazards must take place and, in HUD's view, abatement may be made a

condition of sale with sufficient funds escrowed when a sale is to a

non-occupant purchaser.

For residential property constructed after 1959 and before 1978,

the Federal agency shall conduct a paint inspection and risk

assessment, and the results shall be provided to purchasers as

specified under Section 1018 of Title X. Title X gives the Secretary

authority to waive the requirements for residential property

constructed after 1959 and before 1978 in which a federally or

privately funded risk assessment performed by a certified risk assessor

shows an absence of lead-based paint hazards, or that a paint

inspection, performed by a certified paint inspector, shows an absence

of lead-based paint. (Although the strict language of Section 1013

states ``federally-funded'' risk assessment or paint inspection, the

Department has extended the waiver to privately funded risk assessments

or paint inspections, so long as they are performed by a certified risk

assessor or paint inspector.) In addition, the Secretary may waive the

requirements for residential property constructed after 1959 and before

1978 if a clearance test conducted by a certified risk assessor shows

an absence of lead-based paint hazards. If abatement of lead-based

paint hazards is performed, additional protective measures must be

taken under the general heading of ``other required practices.'' Those

practices were discussed in Section VII.A.1(d) of the Preamble above,

and are further described in Section VII.B. of the Preamble below.

In the absence of appropriations sufficient to cover the costs of

these lead-based paint requirements, the requirements shall not apply.

As discussed in Section V.A. of the Preamble, the Department expects a

Federal agency to determine whether to establish alternative lead-based

paint requirements for its agency if sufficient funds are not

appropriated to carry out the requirements of this subpart.

5. Subpart D--Project-Based Assistance Provided by a Federal Agency

Other Than HUD

This subpart sets out minimum requirements, consistent with Section

1012, for Federal agencies other than HUD that have housing programs

and provide more than $5,000 (per project) of project-based assistance.

For the reasons described in Section VII.A.4. above, the subpart

basically restates the requirements set out in Section 1012.

Each tenant residing in a dwelling unit prior to the effective date

of the regulation implementing Section 1018 of Title X shall receive a

lead hazard information pamphlet. Each owner shall provide notices to

the tenants of risk assessment and hazard reduction activities

conducted in the dwelling unit. Each owner shall also complete a risk

assessment in accordance with a schedule determined by the Federal

agency, and shall conduct hazard reduction to reduce lead-based paint

hazards identified in the risk assessment. In the case of an EBL child

residing in a dwelling unit, the owner shall immediately conduct risk

assessment and hazard reduction in that unit. The owner shall also

comply with the other required practices set forth in this subpart.

It should be noted that the Department is concerned that if interim

controls were required under this subpart in accordance with the

minimum procedure specified in Title X, owners would not have had the

option of conducting abatement

[[Page 29180]]

activities if they were recommended in the risk assessment report and

receiving a rent adjustment if needed. As a consequence, under this

subpart both interim controls and abatement are acceptable responses to

lead-based paint hazards.

6. Subpart E--Single Family Insured Property

This subpart sets out the requirements for the Department's single

family insured property programs. Manufactured homes and property

improvement loan programs under Title I of the National Housing Act are

not covered under this regulation, as neither program is the subject of

``an application for mortgage insurance.'' Applications for mortgage

insurance in connection with a refinancing transaction are excluded

from coverage if an appraisal is not required under the applicable

procedures established by HUD. For those mortgage insurance programs

that are covered, the extent of Federal involvement is limited and,

consequently, the requirements under Title X are also limited.

For a covered refinancing transaction, each occupant residing in a

dwelling unit prior to the effective date of the regulation

implementing Section 1018 of Title X, shall receive the lead hazard

information pamphlet. If an initial application for mortgage insurance

is made, the purchaser would receive the lead hazard information

pamphlet under the requirements for sale transactions in Section 1018

of Title X.

For single family property that receives HUD mortgage insurance,

before the mortgage is endorsed for insurance, the appraiser shall

conduct a visual evaluation of painted surfaces to identify

deteriorated paint. The appraiser need not be a certified paint

inspector or risk assessor because the purpose of the visual evaluation

is only to determine the presence of deteriorated paint and visual

evaluation does not identify the content of lead in paint. Deteriorated

paint surfaces must be repaired and cleanup conducted. With limited

exceptions, the commitment or other approval document must contain the

requirement that all deteriorated paint surfaces are to be repaired and

cleanup conducted before the mortgage is endorsed for insurance. An

escrow fund may be established to conduct paint repair and cleanup

after endorsement of the mortgage under specific conditions. As stated

above, due to the limited relationship between the purchaser and the

Federal government, HUD deemed it impracticable to include requirements

for an EBL child.

If documentation is provided to the appraiser that a limited paint

inspection of specific deteriorated paint surfaces has been completed

in accordance with part 37 and indicated the absence of lead-based

paint on the particular surfaces, the requirements of this subpart

would not apply with respect to those surfaces. Many of the

requirements in subpart E are similar to the current lead-based paint

requirements for single family insurance programs, except that proper

paint repair and cleanup procedures for deteriorated paint are now

specified in part 37.

7. Subparts F and G--Disposition of HUD-Owned Single Family Property

(With and Without Sufficient Appropriations)

These subparts set out requirements for the disposition (i.e. sale)

of HUD-owned single family property. The requirements of subpart F

would apply in the event the Secretary determines that there are

sufficient appropriations to cover the costs of evaluation and

reduction of lead-based paint hazards as set out in Section 1013 of

Title X. The requirements of subpart G would apply in the event the

Secretary determines that there are not sufficient appropriations to

cover the costs of evaluation and reduction of lead-based paint hazards

as set out in Section 1013 of Title X. See the discussion in Section V

A. of the Preamble above.

Under subpart F, for single family property constructed prior to

1960, HUD shall conduct a paint inspection and risk assessment, and

abate identified lead-based paint hazards before the closing of the

sale of the property. Abatement may be made a condition of sale to a

non-owner occupant purchaser, with sufficient funds escrowed. A

residential property is exempt from the requirements of this subpart if

extensive damage requires major rehabilitation or demolition.

For residential property constructed after 1959 and before 1978,

HUD shall conduct a paint inspection and risk assessment before the

closing of the sale of the property. Results of the paint inspection

and risk assessment would be provided to purchasers in accordance with

the disclosure requirements of Section 1018. Title X gives the

Secretary authority to waive the paint inspection and risk assessment

requirements if a federally or privately funded risk assessment,

performed by a certified risk assessor, shows an absence of lead-based

paint hazards; or that a federally or privately funded paint

inspection, performed by a certified paint inspector, shows an absence

of lead-based paint. In addition, the Secretary may waive the

requirements for residential property constructed after 1959 and before

1978 if a clearance test conducted by a certified risk assessor shows

an absence of lead-based paint hazards. The Department shall also

comply with the other required practices set forth in subpart F.

Under subpart G, before the closing of the sale of a residential

property, HUD shall conduct a visual evaluation of all paint surfaces

to identify deteriorated paint. The Department shall repair

deteriorated paint surfaces and perform cleanup of the work area in

accordance with Part 37, before the closing of the sale of the

property. If the Department retains ownership of a residential property

for more than one year, monitoring must be conducted in accordance with

subpart J of Part 37 and paint repair and cleanup conducted if

necessary, unless a residential property is leased during this period

(in which case HUD may make monitoring a condition of the lease). In

the case of a sale to a non-occupant purchaser, paint repair and

cleanup may be made a condition of sale, with sufficient funds

escrowed. HUD may be exempt from the requirements of this subpart for a

specific deteriorated paint surface if a limited paint inspection has

been completed and shows an absence of lead-based paint on the specific

surface. A residential property is also exempt from the requirements of

this subpart if extensive damage requires major rehabilitation or

demolition. In addition, the Department may be exempt from the

repainting requirements described in this subpart if weather conditions

make repainting infeasible or if the property is scheduled for major

rehabilitation or demolition.

Risk assessments are not specifically required for federally owned

residential properties under Section 1013. In fact, Section 1013

contains language requiring inspections for lead-based paint and lead-

based paint hazards. However, Title X itself defines ``inspection'' as

an investigation for lead-based paint on a surface-by-surface basis,

and defines a ``risk assessment'' as an investigation for lead-based

paint hazards, which include lead in dust, paint and soil. Since

Section 1013 requires actions to be taken to treat lead-based paint

hazards, the Department interprets Section 1013 to also require risk

assessments of federally owned residential properties in subpart F.

Neither subpart F nor G requires specific action regarding an EBL

child. Less than 1 percent of the single family property is occupied

when HUD acquires ownership, and, in most cases,

[[Page 29181]]

HUD-owned single family property is vacant within three months of the

transfer of ownership to HUD. Further, HUD-owned single family

properties are generally sold within six months of acquisition. Because

of the limited occupancy and relatively high turnover of HUD-owned

single family property, the Department thought it impracticable to

impose EBL requirements. Existing EBL requirements for single family

property owned by the Department have proven to be impractical and

difficult to implement.

8. Subpart H--Multifamily Insured Property

This subpart sets out the requirements for the Department's

multifamily insured property programs. As with the single family

insured property programs, applications for mortgage insurance in

connection with a refinancing transaction are excluded from coverage if

an appraisal is not required under the applicable procedures

established by HUD. Again, because the extent of Federal involvement is

limited in multifamily insured property programs, the requirements

under Title X are also limited.

For a covered refinancing transaction, each tenant that was

residing in a dwelling unit prior to the effective date of the

regulation implementing Section 1018 of Title X shall receive the lead

hazard information pamphlet. As with the single family insured property

program, a new purchaser applying for mortgage insurance would receive

the lead hazard information pamphlet under the requirements of Section

1018. Before the issuance of the firm commitment, the Department's or

the sponsor's architect shall conduct a visual evaluation of painted

surfaces to identify deteriorated paint. The architect need not be a

certified paint inspector or risk assessor because the purpose of the

visual evaluation is only to determine the presence of deteriorated

paint and the visual evaluation does not identify the content of lead

in paint. Deteriorated paint surfaces must be repaired and cleanup of

the work area conducted. As stated above, due to the limited

relationship between the purchaser and the Federal government, HUD

deemed it impracticable to include requirements for an EBL child. In

cases where multifamily mortgage insurance is combined with another HUD

program (i.e. project-based assistance), the EBL requirements for that

program would apply.

If documentation is provided that a limited paint inspection of

specific deteriorated paint surfaces has been completed in accordance

with part 37 and indicates the absence of lead-based paint on a

specific surface, the requirements of this subpart would not apply with

respect to that surface. Many of the requirements in subpart H are

similar to the current lead-based paint requirements for multifamily

insurance programs, except that proper paint repair and cleanup

procedures for deteriorated paint are now specified in part 37.

9. Subpart I--Project-Based Assistance

This subpart sets out the requirements for the Department's

project-based rental assistance programs. In this program area, the

Department's involvement is ongoing and tied to the residential

structure itself; consequently, the lead-based paint hazard evaluation

and reduction requirements in Section 1012 are more expansive. Although

Title X only requires the Secretary to establish lead-based paint

procedures for residential property receiving more than $5,000 in

project-based assistance, Subpart I includes additional minimal lead-

based paint procedures (i.e. the procedures for tenant-based rental

assistance) for multifamily property receiving less than $5,000 in

project-based assistance from HUD. The Department also applies these

minimum lead-based paint procedures to single family properties

receiving Section 8 Moderate Rehabilitation or Project-Based

Certificate assistance from HUD. As stated above, the Department wanted

to extend some limited lead-based paint protections to properties

receiving minimal project-based assistance and also wanted to relieve

single family owners with limited financial resources from being

required to comply with the extensive lead-based paint requirements for

project-based assistance.

Section 1012 of Title X amends the Lead-Based Paint Act to add

subparagraph 42 U.S.C. 4822(a)(1)(B), which requires, at a minimum,

risk assessments and interim controls in accordance with a schedule

determined by the Secretary. Senate Report 102-332, page 117, states

that under Title X, ``Risk assessments would be performed in all

housing receiving project-based Federal assistance in order to

determine the level of risk and notify the residents of existing

hazards.'' The Department has decided that the term ``project-based''

should be given its traditional meaning--housing assistance payment

programs where the funding is tied to the residential property and not

to the tenant (``tenant-based'' housing assistance payments). Further,

the requirement for risk assessment only makes sense when it is applied

to traditionally ``project-based'' housing assistance payment programs,

where HUD maintains an ongoing relationship with the owner and is able

to require a phase-in of risk assessment requirements.

The statute, at 42 U.S.C. 4822(a)(1)(B), sets out a schedule in

which risk assessments and interim controls must be performed, i.e.

pre-1960 dwelling units prior to January 1, 1996; 25 percent of 1960-

1978 dwelling units by January 1, 1998; not less than 50 percent of

1960-1978 dwelling units by January 1, 2000; and the remainder by

January 1, 2002. The Department does not anticipate issuing a final

lead-based paint rule in time to meet the January 1, 1996 deadline.

Therefore, the Department has delayed the risk assessment schedule, but

maintained the same performance intervals (based on the construction

date of the residential property) as set out in the statute:

residential property constructed before 1960--(proposed to be 2 years

after the effective date of this rule); residential property

constructed after 1959 and before 1965--by (proposed to be 4 years

after the effective date of this rule); residential property

constructed after 1964 and before 1971--by (proposed to be 6 years

after the effective date of this rule); and residential property

constructed after 1970 and before 1978--by (proposed to be 8 years

after the effective date of this rule). As stated above, the Department

has revised the risk assessment schedule to provide adequate time for

education and training in order to implement the new technical

standards, requirements and procedures set forth in this proposed rule

(See Effective Date and Qualifications for Conducting Lead-Based Paint

Hazard Evaluation and Reduction Activities). The proposed rule also

allows the Secretary to develop an alternative schedule, if necessary.

This provision was included to provide the Department with flexibility

in working with HUD clients whose housing assistance payment (HAP)

contracts are due to expire close to the required date for completing

risk assessments. The Department invites comments on the risk

assessment schedule for housing programs receiving project-based

assistance. Specifically, HUD requests comments on how to address the

risk assessment requirements of Title X in residential property where

the HAP contracts are due to expire within the next few years.

Under this subpart, each tenant residing in a dwelling unit prior

to the effective date of the regulation

[[Page 29182]]

implementing Section 1018 of Title X shall receive a lead hazard

information pamphlet. Each owner shall provide notices of evaluation,

paint repair and hazard reduction activities to tenants. Each owner

shall complete a risk assessment prior to execution of the HAP

contract. If a risk assessment report identifies lead-based paint

hazards, the owner is required to develop a hazard reduction plan

(``reduction'' is defined as measures to reduce or eliminate lead-based

paint hazards including interim controls or abatement) proposing hazard

reduction activities consistent with the recommendations of the risk

assessment report, and a schedule for completing hazard reduction

activities. The hazard reduction plan will supplement the owner's

application for rent increase and shall be submitted to HUD and a copy

must be provided to any Contract Administrator or HA in conjunction

with the next rent increase request, but no later than 120 calendar

days after completion of the risk assessment. HUD will review each plan

submitted by an owner and may recommend alternative reduction

activities if the activities proposed are too costly. Before approving

a hazard reduction plan or recommending alternative activities, the HUD

official reviewing the plan shall also conduct a limited environmental

review in accordance with 24 CFR part 50. A copy of the Department's

determinations must be transmitted to any Contract Administrator or HA.

If no rent increase is necessary to implement the plan, the owner shall

certify to HUD that the contents of the plan are consistent with Part

37; in this instance, the owner does not have to submit the actual plan

to HUD. However, certification must be submitted to the Department and

a copy must be provided to any Contract Administrator or HA no later

than 120 calendar days after completion of the risk assessment.

It should be noted that the Department is concerned that if interim

controls are required under this subpart in accordance with the minimum

procedure specified in Title X, owners will not have the option of

conducting abatement activities if they were recommended in the risk

assessment report and receiving a rent adjustment if needed. As a

consequence, under this subpart, both interim controls and abatement

are acceptable responses to lead-based paint hazards.

In the event risk assessment and hazard reduction are not completed

prior to execution of the HAP contract, a risk assessment must be

completed and a hazard reduction plan submitted during the housing

assistance payment period. In the latter case, each risk assessment

must be completed according to a schedule which places a priority on

older dwelling units that are more likely to have lead-based paint. HUD

welcomes comments concerning the timing of the implementation of hazard

reduction for lead-based paint hazards identified in the risk

assessment.

In the case of an EBL residing in a dwelling unit, the owner shall

immediately conduct risk assessment and hazard reduction in the

dwelling unit, rather than adhere to the established schedule. The

owner shall also report the name and address of any known EBL child to

the appropriate State or local health agency. When conducting hazard

reduction, the owner shall also comply with the other required

practices set forth in subpart I.

10. Subparts J and K--Disposition of HUD-Owned and Mortgagee-in-

Possession Multifamily Property (With and Without Sufficient

Appropriations)

These subparts set out requirements for the disposition (i.e. sale)

of HUD-owned multifamily property. The requirements of subpart J would

apply in the event the Secretary determines that there are sufficient

appropriations to cover the costs of evaluation and reduction of lead-

based paint hazards as set out in Section 1013 of Title X. The

requirements of subpart K would apply in the event the Secretary

determines that there are not sufficient appropriations to cover the

costs of evaluation and reduction of lead-based paint hazards as set

out in Section 1013 of Title X. See the discussion in Section V.A. of

the Preamble above.

Under subpart J, for multifamily property constructed prior to

1960, HUD shall conduct a paint inspection and risk assessment before

publicly advertising the property for sale. Abatement of all identified

lead-based paint hazards must be completed no later than conveyance of

the title or before a foreclosure sale required by the Secretary. If

the disposition program provides for repairs to be performed by the

purchaser, abatement may be included in the required repairs. A

residential property is exempt from the requirements of this subpart if

extensive damage requires major rehabilitation or demolition.

For residential property constructed after 1959 and before 1978,

HUD shall conduct a paint inspection and risk assessment before

publicly advertising the property for sale. Results of the paint

inspection and risk assessment would be provided to purchasers in

accordance with the disclosure requirements of Section 1018. Title X

gives the Secretary authority to waive the paint inspection and risk

assessment requirements if a federally or privately funded risk

assessment, performed by a certified risk assessor, shows an absence of

lead-based paint hazards; or that a federally or privately funded paint

inspection, performed by a certified paint inspector, shows an absence

of lead-based paint. In addition, the Secretary may waive the

requirements for residential property constructed after 1959 and before

1978 if a clearance test conducted by a certified risk assessor shows

an absence of lead-based paint hazards. The Department shall also

comply with the other required practices set forth in subpart J.

Under subpart K, before publicly advertising a residential property

for sale, HUD shall conduct a visual evaluation of all paint surfaces

to identify deteriorated paint. The Department shall repair

deteriorated paint surfaces and perform cleanup of the work area in

accordance with Part 37, no later than conveyance of the title by HUD

or before a foreclosure sale caused by the Secretary. If the

disposition program provides for repairs to be performed by the

purchaser, paint repair and cleanup may be included in the required

repairs. If the Department retains ownership of a residential property

for more than one year, monitoring must be conducted in accordance with

subpart J of Part 37 and paint repair and cleanup conducted if

necessary. HUD may be exempt from the requirements to repair a specific

deteriorated paint surface if a limited paint inspection has been

completed and shows an absence of lead-based paint on the specific

surface. A residential property is exempt from the requirements of this

subpart if extensive damage requires major rehabilitation or

demolition.

Again, risk assessments are not specifically required for federally

owned residential properties under Section 1013. In fact, Section 1013

contains language requiring inspections for lead-based paint and lead-

based paint hazards. However, Title X itself defines ``inspection'' as

an investigation for lead-based paint on a surface-by-surface basis,

and defines a ``risk assessment'' as an investigation for lead-based

paint hazards, which include lead in dust, paint and soil. Since

Section 1013 requires actions to be taken to treat lead-based paint

hazards, the Department interprets Section 1013 to also require risk

assessments of federally owned residential properties in subpart J.

Unlike the requirements for single family property in subparts F

and G,

[[Page 29183]]

subparts J and K require specific actions regarding an EBL child. As

stated above, with respect to single family property, less than 1

percent of the single family property is occupied when HUD acquires

ownership and all HUD-owned single family property must be vacant

within three months of the transfer of ownership to HUD. This is not

the case for multifamily property. Therefore, if a child with an EBL

resides in a HUD-owned multifamily dwelling unit, the Department shall

immediately conduct risk assessment and interim controls in that unit.

The Department shall also report the presence of an EBL child, and any

risk assessment or interim controls conducted, to the appropriate State

or local health agency.

11. Subpart L--Rehabilitation

This subpart sets out the requirements for the Department's

programs which provide assistance for rehabilitation. The majority of

this assistance is provided through the Department's CPD programs.

Other rehabilitation assistance is provided under the Flexible Subsidy-

Capital Improvement Loan Program (CILP) for multifamily property. This

subpart does not include other HUD programs that may be tied to

rehabilitation activities, but do not provide direct funding of such

activities. These include the Department's insurance programs and the

Section 8 Moderate Rehabilitation program, which are covered in other

subparts of the proposed rule. Public housing modernization programs

are not included under this subpart.

Since rehabilitation work typically disturbs a painted surface and,

therefore, the result of Federal involvement may be to create or

exacerbate a lead-based paint hazard condition, the requirements under

Title X for rehabilitation or renovation assistance are the most

stringent. Title X requirements for rehabilitation vary based on

whether federal rehabilitation assistance is above or below $25,000.

The subpart discusses the manner in which rehabilitation costs are

calculated for different programs. For purposes of determining whether

the rehabilitation cost is under or over $25,000, the Department will

look at the hard costs of rehabilitation and not at soft costs, such as

administrative fees. Lead-based paint hazard evaluation and cleanup

activities will not be considered part of the rehabilitation costs. The

Department recognizes that it may be difficult in practice to

distinguish between rehabilitation and lead-based paint hazard

evaluation and reduction activities and welcomes comments on this

issue.

There are three general exemptions in this subpart. Rehabilitation

that does not disturb a painted surface is exempt from the requirements

of this subpart for the reasons discussed below. Also, if a grantee,

participating jurisdiction or CILP recipient certifies to the

Department that a dwelling unit undergoing federally funded

rehabilitation has been previously abated of all lead-based paint, the

requirements of this subpart do not apply. A dwelling unit may also be

exempt from the requirement to conduct a limited paint inspection if

the grantee, participating jurisdiction or CILP recipient certifies

that a paint inspection has been completed and indicates the absence of

lead-based paint.

Although many of the requirements under this subpart refer to the

grantee or participating jurisdiction, as is the case with many CPD

programs, the grantee or participating jurisdiction may require

virtually all of these functions to be performed by a subrecipient or

other entity administering the financial assistance. A subrecipient can

be a public or private nonprofit agency, authority or organization, or

a for-profit entity, selected by the grantee or participating

jurisdiction to administer all or a portion of the financial

assistance. An owner or developer receiving Federal rehabilitation

assistance for a residential property is not considered a subrecipient

for the purposes of carrying out that project.

All tenants or owner-occupants shall be provided with the lead

hazard information pamphlet by the grantee, participating jurisdiction

or CILP recipient. In all cases where evaluation, paint repair and

hazard reduction activities are undertaken, each grantee, participating

jurisdiction or CILP recipient shall post or distribute a notice to

tenants of the results of the evaluation. The grantee, participating

jurisdiction or CILP recipient shall also post or distribute a notice

of the results of the hazard reduction activities.

For housing receiving an average of less than $5,000 per unit in

Federal funds for rehabilitation, HUD is requiring the grantee,

participating jurisdiction or CILP recipient to conduct a visual

evaluation of all painted surfaces to identify deteriorated paint.

Before occupancy of a vacant dwelling unit or, where a dwelling unit is

occupied, before rehabilitation work begins, the subrecipient or other

entity (defined to include an owner) shall repair deteriorated paint

surfaces and perform cleanup in accordance with subpart D of part 37.

HUD has created this special category for housing receiving less than

$5,000 in Federal funds for rehabilitation, for which the evaluation

and hazard reduction requirements are more lenient, because the

rehabilitation activity is limited and the paint disturbance minimal.

Rather than exclude this category from coverage under the proposed

rule, the Department chose a ``do no harm'' policy when minimally

disturbing a painted surface. This category of housing receiving an

average of less than $5,000 per unit in Federal funds for

rehabilitation, however, should not be confused with the category of

housing established in the statute receiving less than $5,000 in

project-based assistance.

For housing receiving an average of $25,000 or less per unit (but

greater than $5,000) in Federal funds for rehabilitation, the grantee,

participating jurisdiction or CILP recipient is required to conduct a

paint inspection of surfaces to be disturbed in the course of the

rehabilitation. A paint inspection must be completed before occupancy

of a vacant dwelling unit or, where a dwelling unit is occupied, before

rehabilitation work begins, in accordance with subpart C of part 37. In

addition, each grantee, participating jurisdiction or CILP recipient

shall complete a risk assessment in a sample of the federally assisted

dwelling units (including common areas and exteriors) in accordance

with subpart B of part 37. A risk assessment must be completed before

occupancy of a vacant dwelling unit or, where a dwelling unit is

occupied, before rehabilitation work begins, and may be done in

conjunction with the paint inspection. Hazard reduction activities are

required to address any lead-based paint hazards found.

For housing receiving an average of more than $25,000 per unit in

Federal funds for rehabilitation, the grantee, participating

jurisdiction or CILP recipient is required to conduct a paint

inspection of surfaces to be disturbed in the course of the

rehabilitation. A paint inspection must be completed before occupancy

of a vacant dwelling unit or, where a dwelling unit is occupied, before

rehabilitation work begins, in accordance with subpart C of part 37. In

addition, each grantee, participating jurisdiction or CILP recipient

shall also complete a risk assessment in a sample of the federally

assisted dwelling units (including common areas and exteriors) in

accordance with subpart B of part 37. A risk assessment must be

completed before occupancy of a vacant dwelling unit or, where a

dwelling unit is occupied, before rehabilitation work begins, and may

be done in conjunction with the paint inspection. Abatement of

[[Page 29184]]

lead-based paint hazards identified on a surface to be disturbed by

rehabilitation is required. Each grantee, participating jurisdiction or

CILP recipient shall conduct hazard reduction activities if lead-based

paint hazards are identified in the risk assessment on a surface not to

be disturbed by rehabilitation.

Because the relationship between the Department and the grantee,

participating jurisdiction or CILP recipient is not ongoing, HUD deemed

it impracticable to include requirements for an EBL child. The grantee,

participating jurisdiction or CILP recipient, however, shall comply

with the other required practices set forth in subpart L.

The Department includes risk assessments as a requirement for

rehabilitation programs although risk assessments are not clearly

required for rehabilitation activities under Title X. The statute does,

however, in new subparagraphs (a)(1)(D) and (E), require reduction or

abatement of lead-based paint hazards. Grantees, participating

jurisdictions or CILP recipients receiving rehabilitation funds,

therefore, are required to perform a risk assessment to determine where

lead-based paint hazards exist, so they can then reduce or abate all

such hazards.

New subparagraph (a)(1)(C) requires inspection for the presence of

lead-based paint prior to federally funded renovation or rehabilitation

likely to disturb painted surfaces. HUD has interpreted this language

to require inspection of the painted surfaces to be disturbed in the

course of federally funded rehabilitation (the term ``rehabilitation''

includes ``renovation''). HUD's interpretation does not require

inspection of all painted surfaces in the dwelling unit to be

rehabilitated. HUD has attempted to focus paint inspection and

abatement efforts on those surfaces where the greatest hazard may be

created. This focus seems to be consistent with legislative intent. The

Senate Report, cited supra, at page 117, specifically states that

``prior to beginning work likely to disturb painted surfaces, owners

would be required to have an paint inspection performed to determine

the lead content of the paint.''

After the inspection of the painted surfaces to be disturbed is

performed, for rehabilitation receiving an average of $25,000 or less

(but more than $5,000) per unit, the grantee, participating

jurisdiction or CILP recipient is responsible for reduction of any

lead-based paint hazards identified in the risk assessment in the

entire dwelling unit. HUD has extended the hazard reduction requirement

to the entire dwelling unit to correspond with the areas covered in the

risk assessment. For rehabilitation receiving an average of $25,000 or

more per unit, grantee, participant jurisdiction or CILP recipient is

responsible for abating lead-based paint hazards on surfaces to be

disturbed by the rehabilitation, and reducing lead-based paint hazards

identified in the risk assessment in the rest of the dwelling unit.

12. Subpart M--Community Planning and Development (CPD) Non-

Rehabilitation Programs

This subpart sets out the requirements for certain CPD programs

which provide Federal funding for acquisition, leasing, tenant-based

rental assistance, operating or support services. With the exception of

tenant-based rental assistance, since the Federal funding for these

programs is often provided by the HUD grantees or participating

jurisdictions to the property owner or developer in a single instance

and the relationship is not ongoing, the requirements under Title X are

limited. For the CPD tenant-based rental assistance program, the

requirements of subpart O of Part 36 apply, except for the provision of

the lead hazard information pamphlet. Instead, the lead hazard

information pamphlet must be distributed in accordance with the

requirements set out in subpart M (Sec. 36.256). Although all the

requirements under this subpart refer to the grantee or participating

jurisdiction, the grantee or participating jurisdiction may require

virtually all of these functions to be performed by the subrecipient

administering the financial assistance. A subrecipient can be a public

or private nonprofit agency, authority or organization, or a for-profit

entity, selected by the grantee or participating jurisdiction to

administer all or a portion of the financial assistance. An owner or

developer of an assisted residential property is not considered a

subrecipient for the purposes of carrying out that project.

All tenants or owner-occupants shall be provided with the lead

hazard information pamphlet by the grantee or participating

jurisdiction. Before providing financial assistance to an owner, each

grantee or participating jurisdiction shall conduct a visual evaluation

of all painted surfaces to identify deteriorated paint. For housing

constructed before 1950, each grantee or participating jurisdiction

shall also conduct dust sampling to determine the presence of lead-

contaminated dust. Before occupancy of a vacant dwelling unit or, where

a dwelling unit is occupied, immediately after receipt of financial

assistance, the grantee or participating jurisdiction shall repair any

deteriorated paint surfaces and perform cleanup of the worksite in

accordance with part 37. For housing constructed before 1950, if dust

sampling identifies lead-contaminated dust, the grantee or

participating jurisdiction shall conduct cleanup of the horizontal

surfaces in the room, dwelling unit or common areas where lead-

contaminated dust is located. The grantee or participating jurisdiction

is exempt from the requirement to repair a specific deteriorated paint

surface if a limited paint inspection has been completed in accordance

with part 37 and indicates an absence of lead-based paint on the

specific surface.

As stated above, because the relationship between the HUD grantee

or participating jurisdiction and the property owner or developer is

not ongoing, HUD deemed it impracticable to include requirements for an

EBL child, except in the case of the CPD tenant-based rental assistance

programs.

13. Subpart N--Public and Indian Housing Programs

Section 1012 of Title X does not specifically add new requirements

to public or Indian housing. The Senate Report, cited infra, at page

118, states that Congress did not intend the changes to the Lead-Based

Paint Act introduced by Title X to pose a barrier to ongoing efforts by

PIH to conduct risk assessments, paint inspections and abatement

activities. According to the Report, ``the changes made by Title X to

the public housing provision of the LPPPA are intended merely to

conform the terminology of Title X's definition of terms.''

Nevertheless, in order to consolidate all of the lead-based paint

requirements for HUD in a single place, the Department is including

subpart N for public and Indian housing in this rulemaking. This

subpart implements the requirements set out in 42 U.S.C. 4822(d)(1) and

(3) prior to Title X; where necessary, however, the Department has

modified these requirements in order to be consistent with the intent

of Title X. Such modifications are noted below in the subpart

discussion.

If a tenant has resided in a public or Indian housing unit prior to

the effective date of the regulation implementing Section 1018, the HA

shall provide the tenant with the new lead hazard information pamphlet.

In all cases where lead-based paint or lead-based paint hazard

evaluation or reduction activities are undertaken, the HA shall post or

distribute a notice to tenants of the results of the evaluation. The HA

shall also post or distribute a

[[Page 29185]]

notice of the results of the hazard reduction or abatement activities.

The notification requirement is intended to respond, in part, to the

recommendations made in the 1993 General Accounting Office (GAO) report

entitled, Lead-Based Paint Poisoning: Children in Public Housing Are

Not Adequately Protected (GAO/RCED-93-138).

The Lead-Based Paint Act requires HAs to complete paint inspections

by December 6, 1994. The proposed rule adds a supplemental requirement

to the regulations for HAs that have not completed paint inspections:

any paint inspection not completed by the effective date of this rule

must then be immediately conducted in accordance with part 37. If a

paint inspection was completed prior to the effective date of this

regulation, the Department strongly encourages HAs to conduct quality

control activities prescribed by PIH to ensure that paint inspections

were conducted properly. PIH set out these quality control procedures

in Notice PIH 95-8, issued February 9, 1995.

If a paint inspection has indicated the presence of lead-based

paint, each HA shall complete a visual evaluation, dust and soil test,

in accordance with part 37, in the housing project before January 1,

1999. If a paint inspection has indicated that no lead-based paint is

present, the HA shall complete a soil test (with limited exceptions) in

the housing project. A housing project shall be exempt from these

requirements if the HA can certify that it has been abated of all lead-

based paint and lead-based paint hazards; or that a paint inspection,

and a risk assessment conducted in accordance with part 37, was

completed prior to January 1, 1999 and identifies the absence of any

lead-based paint and lead-based paint hazards in the housing project.

As discussed in Section V.C. of the Preamble above, HAs conducting

dust and soil testing for public and Indian housing are not required by

this proposed rule to be certified in accordance with the new EPA

requirements for lead-based paint activities. However, HAs were

required to complete paint inspections by December 6, 1994 and many HAs

have already taken the initiative to conduct risk assessments in

housing projects; consequently, it seems burdensome to impose new

certification requirements for dust and soil testing conducted in

public and Indian housing. Since the Department has not applied

certification requirements to dust and soil testing conducted by HAs,

the individual or firm conducting these activities on behalf of the HA

shall be trained in lead hazard evaluation and additional descriptive

material concerning soil and dust testing has been added to subpart B

of part 37.

As stated in Section II.A. of the Preamble above, most of HUD's

lead-based paint requirements will focus on reducing lead-based paint

hazards in residential property, pursuant to Title X. The notable

exception to this policy continues to be the required abatement of all

lead-based paint and lead-based paint hazards in public and Indian

housing, as set forth in 42 U.S.C. 4822(d) (1) and (3).

Each HA shall abate all identified lead-based paint and lead-based

paint hazards during the course of physical improvements conducted

under modernization, or as soon as practical after completing the

evaluation requirements set out in this subpart. Each HA shall also

conduct interim controls to treat lead-based paint hazards identified

in dust and soil testing prior to abatement of these hazards; initial

interim controls must be conducted within 30 calendar days of

completing the evaluation requirements set out in this subpart.

Whenever hazard reduction is conducted, the HA shall comply with the

other required practices set forth in Sec. 36.286 of this subpart. A

public or Indian housing project shall be exempt from this requirement

if the HA can provide documentation to the Department that interim

controls are already being conducted in accordance with part 37.

To be consistent with the Title X definition of a lead-based paint

hazard, the Department thought it necessary to include the requirement

for dust and soil sampling. The Department recognizes that many HAs

have taken the initiative to conduct risk assessments in housing

projects. The Department does not intend to penalize those HAs at the

forefront of lead-based paint hazard control, and provides certain

evaluation exemptions to address this situation. Where a lead-based

paint hazard is identified and is not being addressed prior to a HA's

planned abatement schedule, the proposed rule requires the HA to

implement interim controls.

If an EBL child is identified in a public or Indian housing

project, the HA shall complete a risk assessment of the dwelling unit

in accordance with part 37 within 15 calendar days of notification of

the EBL condition, and shall conduct hazard reduction of identified

lead-based paint hazards in accordance with part 37 within 15 calendar

days of receipt of the risk assessment report. The HA may relocate the

family to a post-1978 or previously evaluated dwelling unit that was

found to be free of lead-based paint hazards. Because many HAs have

completed paint inspection and abatement in their housing projects, the

Department has determined that relocation to a dwelling unit free of

lead-based paint hazards is a reasonable option to conducting risk

assessment and interim controls. In addition, the HA shall report the

name and address of the EBL child to the State or local health agency.

The requirements for conducting risk assessment and hazard

reduction activities when an EBL child is identified and reporting EBL

information to the State or local health agency, and the requirement to

notify tenants whenever lead-based paint or a lead-based paint hazard

is identified, are intended to address, in part, GAO's concerns about

protecting children in public housing from lead-based paint poisoning

(See Lead-Based Paint Poisoning: Children in Public Housing Are Not

Adequately Protected, (GAO/RCED-93-138), and Secretary Cisneros'

written reply to Senator John Glenn, past-Chairman, Committee on

Government Affairs, United States Senate, December 20, 1993).

14. Subpart O--Tenant-Based Rental Assistance

This subpart sets out new lead-based paint requirements for the

Department's tenant-based rental assistance programs. The Title X Task

Force on Lead-Based Paint Hazard Reduction and Financing issued

recommendations on reducing lead-based paint hazards in the Section 8

housing stock. The Task Force's June 1995 report, discussed in Section

IV.B. of the Preamble above, provided the Department with a set of

national ``benchmark standards'' to reduce lead-based paint hazards in

private rental property. To the extent practicable, the proposed rule

incorporates these standards into the lead-based paint requirements for

tenant-based rental assistance programs.

As stated in Section V.A., the Department believes that Congress

did not intend for HUD to apply the new minimum procedures for lead-

based paint hazard notification, evaluation and reduction set out in

Title X to tenant-based rental assistance. However, HUD does not

believe that Congress intended to abolish HUD's current procedures,

which serve to protect, in a minimal way, the recipients of this type

of housing assistance. In this proposed rule, HUD continues to require

tenant-based rental property to meet the minimal standards for lead-

based paint found in the Department's HQS. The proposed rule slightly

modifies these

[[Page 29186]]

standards to incorporate the spirit of Title X and its new lead-based

paint terminology, as well as incorporating some of the recommendations

of the Title X Task Force.

The requirements set forth in subpart O apply only to dwelling

units in which a family with a child under age six resides. The scope

of this subpart is more narrow than the scope of other program

subparts, and deviates from Title X's directive to address lead-based

paint hazards in all federally owned residential property or housing

receiving Federal assistance (with limited exceptions for the elderly,

disabled and single room occupancy dwelling units). The Department

thought it reasonable to continue to restrict the lead-based paint

requirements for the tenant-based rental assistance programs to

dwelling units in which a family with a child under age six resides

because of the program's ability to identify any changes in the

composition of an assisted family. In addition, the HAs are able to

monitor the property owner's compliance with HQS through initial and

periodic dwelling unit inspections. These two safeguards will help to

ensure that an HA will know whether a child under age 6 resides in a

dwelling unit. It should be noted that an owner that refuses to rent a

dwelling unit to a family with a child under the age of six may be in

violation of the provisions of the Fair Housing Act prohibiting

discrimination on the basis of familial status.

Because this subpart focuses on dwelling units with young children

who are at greatest risk of lead poisoning, the Department has added a

requirement for dust testing to the existing requirement for visual

evaluation in order to identify potential lead-based paint hazards.

This additional protection applies to initial inspections of rental

property constructed prior to 1950, where lead-based paint hazards are

more prevalent.

If a tenant has resided in a dwelling unit prior to the effective

date of the regulation implementing Section 1018, the HA shall provide

the tenant with a lead hazard information pamphlet at the next periodic

dwelling unit inspection. Prior to approval by the HA for a family to

lease a dwelling unit constructed before 1950, an HQS inspector shall

conduct a visual evaluation of all painted surfaces to identify

deteriorated paint and conduct dust sampling in accordance with part

37. Since the proposed rule does not require a complete risk

assessment, and the Department recognizes the cost constraints faced by

HAs, the HQS inspector need not be certified as a paint inspector or

risk assessor in accordance with Section 402 of TSCA, in order to

conduct dust tests. Rather, this subpart requires the HQS inspector to

be trained in lead-based paint hazard evaluation that must include

proper procedures for dust sampling and additional descriptive material

concerning dust testing has been added to subpart B of part 37.

The owner shall repair deteriorated paint surfaces before occupancy

of a vacant dwelling unit constructed before 1950, or where the pre-

1950 dwelling unit is occupied, within 30 days of notification of the

results of the visual evaluation. If dust sampling identifies lead-

contaminated dust above the applicable level, cleanup of the horizontal

surfaces in the room, dwelling unit or common areas where lead-

contaminated dust is located must be completed prior to occupancy. If

dust sampling does not indicate lead-contaminated dust, cleanup of the

worksite must be completed prior to occupancy.

Prior to approval by the HA for a family to lease a dwelling unit

constructed after 1949, an HQS inspector shall conduct a visual

evaluation of all painted surfaces to identify deteriorated paint. The

owner shall repair deteriorated paint surfaces and perform cleanup of

the worksite prior to occupancy or, if the dwelling unit is unoccupied,

within 30 calendar days of the results of the visual evaluation.

If an EBL child is identified in a dwelling unit receiving Federal

assistance under this subpart, the owner shall complete a risk

assessment of the dwelling unit where the EBL child resides within 15

calendar days of notification, and conduct interim controls to treat

the identified lead-based paint hazards within 15 calendar days of

receiving the risk assessment report. The HA shall also, to the extent

practicable, attempt to obtain the names and addresses of EBL children

from local public health agencies on an annual basis and match this

information with the names and addresses of families receiving tenant-

based rental assistance. As discussed in VII.A.1.(c) of the Preamble

above, these additional lead-based paint requirements imposed on the

tenant-based rental assistance programs when an EBL child is identified

respond to concerns about protecting children living in Section 8

tenant-based rental property from lead poisoning (See the United States

General Accounting Office report entitled ``Children in Section 8

Tenant-Based Housing are not Adequately Protected'' (GAO/RCED-94-137,

dated May 13, 1994), and are consistent with the recommendations of the

Title X Task Force.

The requirements of this subpart do not apply for specific

deteriorated paint surfaces if the owner certifies that a limited paint

inspection was completed with respect to the specific surfaces and

indicated an absence of lead-based paint on those surfaces. An owner

shall also be exempt from the evaluation and hazard reduction

requirements of this subpart if certification is provided to the HA

that the dwelling unit has been abated of all lead-based paint hazards.

The Department considered several options for addressing lead-based

paint hazards in the tenant-based rental assistance program. The

requirements set forth in subpart O attempt to strike a balance between

the tradition of limiting Federal requirements imposed on the private

housing stock associated with tenant-based rental assistance programs,

and the recognition that as HUD's Reinvention shifts to tenant-based

rental assistance instead of subsidies to public housing agencies,

protections must continue to be provided to HUD clients living in

private rental property (See Section III of the Preamble above).

B. Part 37

The requirements set forth in part 37 are designed to ensure that

lead-based paint hazard evaluation and reduction activities are

performed safely and effectively. They prescribe ``how'' these

activities are to be accomplished. In writing part 37, the Department

sought to balance the competing objectives of effectiveness and

affordability by including only the requirements needed to achieve

acceptable performance. The Department also incorporated performance-

oriented requirements wherever possible, thereby allowing residential

property owners to use the most cost-effective methods for their

properties and to take advantage of cost-saving improvements in

technology as they occur. The requirements included in part 37 are

based on the HUD Guidelines, which contain standard methods for

effectively identifying and controlling lead-based paint hazards, given

current knowledge and technology.

1. Subpart A--General Requirements

Subpart A explains the purpose and applicability of part 37, noting

that paint inspection, risk assessment and abatement activities

(including clearance examinations) must be conducted by paint

inspectors, risk assessors and abatement supervisors and workers

certified in accordance

[[Page 29187]]

with EPA regulations (40 CFR 745.226). Part 37 provides interim

requirements for these activities when paint inspectors, risk assessors

and abatement supervisors and workers are not certified in accordance

with EPA regulations. Recognizing that the supply of certified paint

inspectors, risk assessors and abatement supervisors and workers may be

inadequate at the effective date of this rule, this subpart also

authorizes the Secretary to establish temporary qualifications for

these individuals until such time as there is a sufficient number of

certified personnel. In addition, Subpart A notes that any lead-based

paint hazard evaluation and reduction activities that are not included

in 40 CFR 745.226 (e.g. paint repair, interim controls) are to be

conducted in accordance with the standards and methods set out at 24

CFR part 37. The Department requests comment on the level of detail

necessary in 24 CFR part 37 to carry out the lead-based paint hazard

evaluation and reduction requirements found at 24 CFR part 36.

Finally, Subpart A also includes a reference to the HUD Guidelines

for more specific information, and a requirement for the accreditation

of laboratories performing lead-based paint analyses by the EPA

National Lead Laboratory Accreditation Program. Definitions applicable

to 24 CFR part 36 are also applicable to part 37.

2. Subpart B--Risk Assessment

A risk assessment, as prescribed in subpart B, consists of a visual

assessment to determine the condition of painted surfaces in the

building and the need for structural repairs; limited environmental

sampling of deteriorated paint, dust, and soil; and a written report

that describes identified lead-based paint hazards and lists acceptable

abatement or interim control methods for controlling these hazards.

This subpart specifies, in some detail, elements of a visual

assessment, the conditions that constitute lead-based paint hazards,

and the requirements for testing paint, dust, and soil to determine

whether such hazards are present. This subpart is written

prescriptively because of the following reasons: (1) The risk

assessment requirements found in part 37 are intended to be HUD's

minimum requirements for performing risk assessments as required by 24

CFR part 36. The Department is concerned that without the guidance of

this subpart, a risk assessor may include additional testing protocols

that would not accurately reflect the Department's intent. In such a

case, a HUD client may misinterpret the risk assessor's recommendations

as the Department's minimum requirements for risk assessment. This

could result in significant increases in cost to the Department and its

clients; (2) the concept of risk assessment is new; (3) there does not

exist at the time of this writing a well established consensus standard

for risk assessments; (4) very few risk assessors have been trained and

certified; and (5) housing authority employees with some degree of

training, but not certified, will be performing dust and soil sampling

for public housing and require more detailed guidance. The Department

requests comments on these procedures particularly interpreting dust

sample results to determine what surfaces should be cleaned.

Subpart B requires that a risk assessment be performed by risk

assessors certified under EPA certification regulations. Recognizing

that the supply of certified risk assessors may be inadequate at the

effective date of this proposed rule, this subpart authorizes the

Secretary to establish temporary qualifications for risk assessors

until such time when State programs can produce a sufficient number of

certified personnel.

This subpart incorporates EPA guidance for lead in dust, paint, and

soil. At the time of this writing, EPA had not yet published the

health-based standards mandated by Section 403 of TSCA (added pursuant

to Section 1021 of Title X) that will apply to lead in dust (including

dust in carpeted floors), paint or soil. When the health-based

standards are published, HUD will consider modifying the requirements

set out in 24 CFR parts 36 and 37, accordingly.

Because risk assessors will need guidance in evaluating surfaces

with wall-to-wall carpeting, HUD has included in this proposed rule a

dust standard for carpeted floors equal to the standard for hard

surface floors. HUD believes that a carpet dust standard that parallels

the threshold for hard floors provides a reasonable level of

protection. HUD requests information on levels of lead dust in carpets

that would be dangerous to young children, the prevalence of lead dust

in carpets in the nation's housing stock, and effective and feasible

methods of removing lead dust from carpets.

Under this subpart, risk assessments of multifamily properties must

evaluate the conditions in every dwelling unit, except when five or

more similar dwelling units are present. Among similar dwelling units,

a targeted sample of dwelling units may be used as the basis for

evaluating the nature and extent of lead-based paint hazards among all

units. This subpart establishes parameters that must be satisfied when

selecting a targeted sample of dwelling units.

The HUD Guidelines permit the use of a lead-based paint hazard

screen in properties that are in good physical condition. This

technique is a modified risk assessment using limited paint sampling

and dust sampling of the floors and window troughs. The standards for

passing a lead-based paint hazard screen are more stringent than those

for passing a risk assessment. This procedure was excluded from the

proposed rule because the results of sampling dust in window troughs

would probably fail the standards set out in part 37 in a large

majority of dwelling units. Window troughs are essentially an exterior

window surface that is frequently in poor condition due to weathering;

troughs are subject to continuous contamination and, therefore, are

difficult to clean to the extent necessary in order to satisfy the

standards set out in part 37.

3. Subpart C--Paint Inspection

A paint inspection, as prescribed in Subpart C, is a surface-by-

surface investigation of all similarly painted surfaces in a dwelling

unit, both interior and exterior, to determine the presence and

location of lead-based paint. In multifamily properties, the paint

inspection also includes an investigation of surfaces in the common

areas of buildings.

This subpart specifies the minimum requirements for selecting

surfaces to inspect in single family and multifamily property and

identifies acceptable methods for testing the lead content of the paint

on these surfaces with portable x-ray fluorescence (XRF) analyzers and,

if necessary, laboratory analysis of paint samples. Paint inspections

of multifamily property of 21 or more dwelling units may rely on the

results from a random sample of units selected in accordance with the

procedures established by this subpart. This sample is more extensive

than that required in current HUD regulations and provides a 95 percent

confidence level.

The purpose of a paint inspection is to identify the location of

lead-based paint in a dwelling unit or building, not the presence of

lead-based paint hazards. Paint inspections, as required by part 36,

aid in planning abatement in modernization of public and Indian

housing, and rehabilitation or renovation work by identifying the

surfaces where precautions must be taken during construction to avoid

creating lead-based paint hazards.

[[Page 29188]]

The requirements for paint inspection, like those for risk

assessment, are much more prescriptive than existing regulations. This

is so because (1) correct paint inspection procedures are essential to

ensure accurate results, and (2) new paint inspection procedures have

resulted from recent research by EPA and HUD.

4. Subpart D--Paint Repair

Paint repair constitutes the minimum treatment for deteriorated

paint surfaces. It requires only surface preparation by acceptable

methods, surface cleaning, repainting, and a modified cleanup of the

immediate worksite. This subpart exempts treatment of deteriorated

paint surfaces below a de minimis level.

5. Subpart E--Interim Controls

Subpart E, like subpart B concerning risk assessment, describes in

prescriptive terms the requirements for performing effective interim

control treatments to reduce lead-based paint hazards. Interim controls

refer to a set of hazard reduction measures designed to achieve

temporary control of identified lead-based paint hazards. The

requirements are prescriptive because the concept of interim controls

is new, and there is no established training or certification program

for interim control workers. For this reason, the regulation requires

these workers to be supervised by a certified abatement supervisor.

There are four basic types of interim control treatments: paint

stabilization, friction and impact surface controls, dust controls, and

soil controls. In addition to establishing requirements for these

treatments, this subpart identifies methods that may not be used as

interim controls. The subpart also specifies circumstances when interim

controls are not acceptable hazard reduction methods. This subpart

exempts treatment of deteriorated paint surfaces below a de minimis

level.

Interim controls often have a lower initial cost than abatement

methods. However, interim controls require regular monitoring and

reevaluation because they are not permanent treatments. The cost of

monitoring should be considered when deciding whether to use interim

controls or to abate a lead-based paint hazard. For some hazards,

abatement methods will be more cost-effective than interim controls

when the cost of monitoring is considered.

6. Subpart F--Abatement

This subpart, which establishes the requirements for abatement, is

written largely in performance terms (e.g. permanently eliminate the

lead-based paint hazard) since abatement procedures are well

established, and a significant number of qualified abatement

supervisors and workers currently exists.

The regulation defines component replacement, enclosure, removal,

and encapsulation as acceptable methods of abatement. It also prohibits

seven methods of paint removal because they can easily contaminate the

environment and/or are dangerous for workers to use. One abatement

method, encapsulation, is prescribed in more detail, because there are

no performance standards for encapsulants at this time.

There is no exclusion for deteriorated paint surfaces below a de

minimis level from abatement requirements in subpart F. The two types

of HUD programs that are most affected by the abatement requirements

set out in this subpart are public and Indian housing projects and

rehabilitation assistance programs. HAs are required under the Lead-

Based Paint Act to abate all lead-based paint and lead-based paint

hazards. For rehabilitation programs providing more than $25,000 in

Federal rehabilitation assistance, abatement must occur on all lead-

based paint surfaces to be disturbed by the rehabilitation. As a

result, it is the Department's view that where abatement is required,

an exclusion for a de minimis level would not be appropriate.

7. Subpart G--Occupant Protection and Worksite Preparation

This subpart establishes minimum requirements for protecting

occupants of dwelling units undergoing lead-based paint hazard

reduction activities from exposure to lead-based paint hazards while

this work is being performed. It also establishes a performance

requirement for preparing the hazard reduction worksite to prevent the

uncontrolled release of lead-contaminated dust and debris beyond this

area.

Lead-based paint hazard reduction activities frequently generate

lead-based paint hazards while work is underway. Subpart G requires

that the occupants of a dwelling unit undergoing hazard reduction not

be permitted to enter the worksite until hazard reduction activities

have been completed and the area has passed a clearance examination

performed in accordance with subpart I. It also requires that occupant

belongings be protected from contamination while work is in progress.

If occupants cannot safely live in a dwelling unit while lead-based

paint hazard reduction is being performed, they must be temporarily

relocated to a suitable dwelling unit until work is completed and the

dwelling unit has passed a clearance examination. This subpart

describes those circumstances when tenants can safely remain in the

dwelling unit while hazard reduction is being performed. HUD recognizes

that temporary relocation adds to the cost of hazard reduction and can

inconvenience occupants. The Department believes that the provisions of

this subpart require relocation only when it is essential to the safety

of the occupants.

Protections are also needed to prevent any hazards generated during

hazard reduction from spreading beyond the worksite. The level of

protection needed to meet these requirements will vary depending on the

type and extent of hazards to be treated, the methods of treatment, and

the characteristics of the dwelling unit. HUD has not established a

detailed set of protective measures that apply to all worksites because

in some cases such protections would exceed those needed while in

others, the protections would be inadequate. Instead, HUD is requiring

that a properly certified risk assessor, abatement supervisor, or

trained lead-based paint designer/planner determine the specific

protections that must be used in a worksite to meet the requirements of

this subpart.

8. Subpart H--Cleanup

Subpart H describes required cleanup activities following lead-

based paint hazard reduction activities. Cleanup is the process of

removing debris and dust.

The regulation specifies two types of cleanup activities: daily

cleanup, and final cleanup. Daily cleanup is required at the end of

each work day after hazard reduction activities. When cleaning debris,

workers must use practices that minimize the generation of dust.

Cleaning the troughs of windows is required in this process since they

are frequent dust traps and can be cleaned along with the window sill.

Troughs are not, however, required to be tested in the clearance

examinations. Finally, the containment area's protective coverings must

be examined and any defects repaired.

Final cleanup is performed after all hazard reduction activities

have been completed. Final cleanup requirements establish safe

practices for the removal of dust, debris and the protective coverings

of the containment area. If the residential property is not required to

pass a clearance examination, final cleanup may begin no sooner than

one hour after hazard reduction activities have ceased.

[[Page 29189]]

The Department requests comments on the level of detail and the

necessity of this subpart for the following reasons. If the final

performance requirement is the safe reoccupancy of the residential

property after passing a clearance examination, the need for cleanup

regulations may be questionable. Although proper cleanup is a critical

factor in satisfying clearance standards, the ultimate test is

clearance which is likely not to occur if cleanup is neglected or

incomplete. This is not intended to eliminate the requirement for

modified cleanup in properties which have undergone lead-based paint

hazard reduction work such as paint repair, but do not require a

clearance examination.

9. Subpart I--Clearance

Subpart I establishes the minimum requirements for performing

clearance examinations following lead-based paint hazard reduction.

Clearance consists of a visual examination, dust testing and soil

testing. A visual examination is done to ensure that all hazard

reduction work was properly completed and to check for any remaining

dust and debris. Dust testing is also required to confirm that no lead

dust hazards remain in the residential property. This subpart

establishes requirements for the number and location of dust and soil

samples.

Clearance examinations may begin one hour after completing final

cleanup. This is a significant change from previous guidance which

required a 24-hour waiting period. The Department has acted upon

analysis that indicates lead-contaminated dust settles much faster than

originally determined--most of it within 1 hour.

Clearance examinations must be performed in all dwelling units and

common areas in a multifamily property with less than 21 units. In

properties with more than 21 dwelling units, a random sample of units

may be examined if the dwelling units are selected in accordance with

the unit sampling requirements established in subpart C. The regulation

requires that components, rooms, or common areas that fail clearance

testing be re-cleaned and retested until they pass.

10. Subpart J--Monitoring

Subpart J prescribes requirements for monitoring of residential

properties to assure the effectiveness of the interim controls required

in subpart E or other lead-based paint hazard reduction activities. If

a residential property has no lead-based paint or has had all lead-

based paint removed or permanently controlled (excluding

encapsulation), monitoring is not required.

Monitoring consists of two types of activities: visual surveys by

the property owner and a reevaluation by a risk assessor. A visual

survey examines painted surfaces, lead-based paint hazard reduction

treatments, and ground cover for signs of lead-based paint hazards. Any

identified hazards must be promptly and safely corrected. In most

cases, visual surveys will be performed annually.

A reevaluation is a modified risk assessment that includes a visual

assessment of painted surfaces and lead-based paint hazard reduction

treatments in conjunction with limited dust and soil sampling to

determine if any hazards have developed since the most recent hazard

reduction treatments were performed. This subpart establishes the

minimum requirements for performing visual assessments, as well as dust

and soil sampling. In multifamily properties with five or more similar

dwelling units, a targeted sample of units selected in accordance with

the unit selection requirements of subpart B, or a random sample

selected according to requirements of subpart C, may be used as the

basis for reevaluating all such units.

Reevaluations must be performed by a certified risk assessor (40

CFR 745.226) in accordance with the minimum schedule requirements

established by this subpart. As part of each reevaluation, the risk

assessor must prepare a report documenting the presence or absence of

lead-based paint hazards, and acceptable control options for new

hazards.

C. Regulatory Assessment

HUD has prepared a Regulatory Impact Analysis (RIA) that examines

the costs and benefits of the proposed regulatory action in conjunction

with this proposed rule. The major findings in the RIA are presented in

this summary, organized into four sections appearing below: Cost-

Benefit Analysis; Sensitivity Analysis and Regulatory Alternatives;

Economic Impacts; and Environmental Justice. The complete document is

available for inspection in the Office of the Rules Docket Clerk, Room

10276, 451 Seventh Street, SW, Washington, DC.

1. Cost-Benefit Analysis

The analysis of net benefits in the RIA reflects costs and benefits

associated with the first year of hazard evaluation and reduction

activities under the proposed rule. These costs and benefits, however,

include the present value of future costs and benefits associated with

first year hazard reduction activities. For example, the costs

associated with first year activities include the present value of

future reevaluation costs. Similarly, the benefits of first year

activities include the present value of lifetime earnings benefits for

children living in or visiting the affected unit during that first

year, and for children living in or visiting that unit during the

second and subsequent years after hazard reduction activities.

The present value of lifetime earnings benefits is particularly

sensitive to discount rate assumptions in the analysis, because these

benefits reflect lifetime earnings many decades into the future. The

RIA presents estimated benefits of increased lifetime earnings using

two different discount rates for lifetime earnings--3 percent and 7

percent. For estimates of costs and all other benefits, the RIA uses a

7 percent rate.

Employing a 3 percent discount rate of the lifetime earnings

estimates, the RIA concludes that benefits of first-year activities are

$1,538.2 million; costs are only $458 million. Thus the estimated net

benefit is $1,080.2 million. If a 7 percent discount rate is used for

lifetime earnings benefits, the present value of the benefits of the

proposed rule associated with first year activities is estimated to be

$497 million, and estimated costs remain at $458 million. The proposed

rule would therefore realize a net-benefit of only $39 million using

the 7 percent discount rate. Benefits and costs of the proposed rule

using both discount rates are shown in Tables 7A and 7B.

While the Office of Management and Budget specifies 7 percent as

the appropriate discount rate for most regulatory analyses, EPA's

analysis of this issue (in the 1994 RIA for the proposed regulations

implementing sections 402 and 404 of the Toxic Substances Control Act)

has concluded that a 3 percent discount rate best reflects the social

rate of time preference for annualized, non-capital costs and benefits.

OMB guidance recognizes that a special social rate of time preference

is appropriate when conducting intergenerational analysis. An

intergenerational discount rate is applicable to the proposed rule

because the costs will be borne by adult taxpayers, and lifetime

earning benefits will be realized by the children and grandchildren of

these adult taxpayers.

An intermediate approach, not quantified in the RIA, could have

used a real discount rate based on the long-term borrowing costs of the

Federal government. The 7 percent rate used in most regulatory analyses

is intended to

[[Page 29190]]

reflect OMB's estimate of the opportunity cost of capital, based on the

average real rates of return on private investments. This rate is

appropriate for most regulatory analyses because most regulations

impose costs on the private sector. The proposed rule, however, imposes

costs on federally assisted housing. Most of these costs will be funded

directly or indirectly by Federal expenditures. If these expenditures

increase the national debt, then the real cost of that debt to future

generations will compound at the real long-term Federal rate. The

Internal Revenue Service's Applicable Federal Rate (AFR) measures the

nominal cost of government borrowing over obligations with different

maturities, and the long-term AFR adjusted for the implicit price

deflator results in real AFRs of approximately 4 to 5 percent for the

past 6 years. Therefore, benefits could be discounted at the same real

AFR rate (i.e., 4 to 5 percent).

By presenting results using both 3 and 7 percent, HUD is providing

the broadest view of costs and benefits. Additional information on the

methodology and results of the cost-benefit analysis is provided below.

Cost Estimation. The methodology used to estimate annual costs for

the proposed rule is based on the following formula:

Regulatory Cost=(unit cost) x (unit cost frequency) x (number of

affected units)

The ``unit cost'' estimates reflect the average estimated costs

associated with specific hazard evaluation and reduction activities in

a ``typical'' single or multifamily housing unit affected by the

proposed rule. These unit cost estimates are based on interviews with

lead-based paint hazard evaluation and abatement contractors, state

officials, and other experts familiar with lead-based paint hazard

evaluation and reduction costs. These cost estimates are also

consistent with those presented in HUD's ``Comprehensive and Workable

Plan for the Abatement of Lead-Based Paint in Privately Owned Housing''

(1990) and in the Lead-Based Paint Hazard Reduction and Financing Task

Force report, ``Putting the Pieces Together: Controlling Lead Hazards

in the Nation's Housing'' (1995).

Table 1 presents estimated average costs for lead-based paint

hazard evaluation and both full and incremental cost estimates for

hazard reduction activities. Incremental paint repair and abatement

costs are those additional costs associated with the rule beyond the

costs of non-lead-based paint repair and rehabilitation work in the

absence of lead-based paint. Only incremental costs are incurred under

rehabilitation programs, and full costs under other programs are offset

by the estimated market values of routine paint repair and

rehabilitation work.

Relocation costs are not included in this analysis, because HUD

expects that relocation of occupants will rarely be required as a

result of the proposed regulations. Most interim controls and small-

scale abatements can be conducted without relocation by carefully

containing dust to work areas and keeping occupants out of work areas.

Relocation is usually only necessary in cases of extensive abatement of

lead-based paint throughout the living areas of a housing unit. In the

proposed regulations, abatement of lead-based paint or lead-based paint

hazards is required in only two programmatic situations: public and

Indian housing, and substantial rehabilitation projects receiving more

than $25,000 per unit in Federal funds. This proposed rule, however,

does not initiate the full abatement requirement in public and Indian

housing; that requirement has been in place since 1986. In the case of

substantial rehabilitation projects, it is unlikely that such housing

will be occupied, so relocation will not be necessary. It is possible

that extensive interim controls in occupied housing may necessitate

relocation; but HUD believes this will be rare because, through the

hazard control plan provision, HUD has given property owners receiving

project-based assistance the flexibility to schedule such activity at

the time of unit turnover. It is possible that extensive interim

controls may sometimes be needed in units occupied by children with

elevated blood-lead levels in public and Indian housing or in tenant-

based assistance programs. HUD has not been able to estimate the

frequency with which this will occur, but is of the opinion that it

will be rare and that any such relocation costs will not materially

affect the results of this cost-benefit analysis.

``Unit cost frequencies'' reflect the extent of required hazard

evaluation activities under the proposed rule and the occurrence

frequencies of different lead-based paint hazards that trigger hazard

reduction requirements. Occurrence frequency estimates in this analysis

generally reflect data from the National Survey of Lead-Based Paint in

Housing completed in 1990 and are presented in Table 2. Estimates are

provided for three construction-year intervals: Pre-1940, 1940-1959,

and 1960-1977.

The ``number of affected units'' is the annual number of HUD-owned

or assisted units affected by the proposed rule. Data gathered from

each HUD program office indicates that more than 1.6 million housing

units are affected Department-wide during the first year after

promulgation. The number of affected units is shown in Table 3 by

program and construction period.

The estimated incremental cost of the proposed rule during the

first year of hazard evaluation and reduction activities is $458

million, or an average of $283 per unit, if it is assumed there are no

appropriations to implement section 1013 of the Act for HUD-owned

housing. The estimated incremental cost with appropriations is $572

million, or an average of $353 per unit. The estimated incremental cost

by program is presented in Table 4.

Table 1.--Estimated Costs Per Dwelling Unit for Hazard Evaluation and

Reduction Activities

------------------------------------------------------------------------

Cost per Cost per

Unit cost activity single multifamily

family unit unit

------------------------------------------------------------------------

Hazard Evaluation:

Visual Evaluation......................... $10 $5

Risk Assessment (RA)...................... 375 260

RA and PI................................. 550 400

Paint Inspection (PI)..................... 400 300

2 composite dust tests.................... 70 70

Clearance................................. 150 120

Reevaluation.............................. 271 217

Hazard Reduction:

Exterior paint repair..................... 1,000 100

[[Page 29191]]

Interior paint repair..................... 500 500

Incremental exterior paint repair......... 100 10

Incremental interior paint repair......... 20 20

Incremental interior paint repair with

rehab.................................... 60 40

Window work............................... 300 200

Other friction/impact work................ 300 200

Soil cover................................ 200 10

Exterior abatement........................ 5,000 250

Interior abatement........................ 3,000 2,000

Incremental exterior abatement............ 1,000 50

Incremental interior abatement............ 600 400

Area cleanup.............................. 75 75

Unit cleanup.............................. 450 300

------------------------------------------------------------------------

Table 2.--Estimated Occurrence Frequencies for Costs and Benefits

----------------------------------------------------------------------------------------------------------------

(Percentage of all units): Freq.

Unit cost occurrence trigger --------------------------------------

Pre-1940 1940-1959 1960-1977

----------------------------------------------------------------------------------------------------------------

Multifamily Sample Testing:

Risk assessment/RA and PI............................................ 16 16 16

Paint inspection only................................................ 23 23 23

Interior LBP Disturbed by Rehab:

Single family interior 500 ug/sq. ft...................................... 54 14 13

Floor dust >100 ug/sq. ft............................................ 36 17 4

Bare soil >2000 ug/g................................................. 27 4 0

Deteriorated LBP:

Interior LBP......................................................... 16 6 3

Single family det. exterior LBP...................................... 28 12 6

Multifamily det. exterior LBP........................................ 14 6 3

Single family deteriorated interior plus exterior LBP................ 44 18 9

Multifamily deteriorated interior plus exterior LBP.................. 30 12 6

Combined and Partial Hazards:

Sill and/or floor dust............................................... 61 26 16

Interior deteriorated LBP without lead floor dust.................... 3 3 2

Interior deteriorated paint without lead floor dust.................. 14 13 5

Sill and/or floor dust and/or interior deteriorated LBP.............. 4 29 18

Paint repair area dust............................................... 8 3 1

----------------------------------------------------------------------------------------------------------------

Table 3.--HUD-Owned or -Assisted Housing Units

----------------------------------------------------------------------------------------------------------------

Number of units

Subparts --------------------------------------- Total

Pre-1940 1940-1959 1960-1977

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