The Risk Manager, Fall 2000

The new regulation applies to pre-1978 built housing receiving some federal assistance. It is a comprehensive regulation that includes:

• Standards for determining the amounts of lead in paint, dust, or soil that is considered hazardous,
• Defines “hazards,”
• Requires clearance testing,
• Sets hazard control requirements, and
• Mandates that lead-based paint hazards be inspected or tested by certified inspectors or risk assessors.

Note that the regulatory standard for hazard evaluation of amounts of lead in paint, dust, and soil will be changed in the near future. The change is expected to lower the acceptable amounts.

Commentators observe that the new regulation should establish a standard of care for determining the adequacy of private housing owners’ actions or in-actions. The new stricter requirements make it harder for landlords to comply thus increasing liability exposure. This risk is compounded because the rules are now all in one regulation making it difficult to plead ignorance. Conversely, they point out that, if the standards in the regulation are considered state of the art, showing compliance with the standard should be an effective defense. They also speculate that the new standards could make it easier to sue negligent risk assessors and abatement contractors. Finally, they note that the regulation is so turgid and detailed that it will be hard for many small firms and solos to practice lead-based paint cases without expert advice.

The new regulation is in 24 CFR Part 35. It is available along with comment and a question and answer fact sheet on HUD’s Lead Control web site at: http://www.hud.gov/lea.

Source: “New Lead Paint Rules Are Released by HUD,” Lawyers Weekly USA, Issue 21/2000 LWUSA 897, 10/16/00 (http://www.lawyersweeklyuse.com).