OIG Issues Management Alert on Complying with the Lead Safe Housing Rule

OIG says HUD should require owners to document their determinations that work qualifies for the de minimis exemption.

While conducting an ongoing audit of the Philadelphia Housing Authority’s management of lead-based paint hazards in its public housing units, HUD’s Office of the Inspector General (OIG) identified a gap in HUD’s program requirements related to safe work practices, which OIG believes “requires immediate action by HUD.” 

OIG identified that the housing authority determined a substantial percentage of maintenance and hazard reduction work performed on surfaces with lead-based paint in its public housing units was “de minimis,” or minor. As a result, the housing authority’s determinations exempted the work from HUD’s rules requiring safe work practices. According to OIG, in some cases, the documentation in the housing authority’s maintenance files indicated the work might have been labeled improperly as de minimis. OIG is highlighting the fact that HUD doesn’t require assisted property owners to maintain evidence supporting that the work was minor.  

Lead Safe Housing Rule

The regulation establishes requirements that control lead-based paint hazards in assisted housing. It applies only to housing that was built before 1978; in that year, lead-based paint was banned nationwide for consumer use. HUD’s Lead Safe Housing Rule requires certain assisted sites, depending on the amount of assistance they get, to meet lead hazard evaluation and reduction requirements by specified deadlines. These requirements include getting a risk assessment of the lead hazards at the site, taking steps to control those hazards, and notifying residents about them. The rule also requires sites to give residents certain information about lead paint when renovating units or common areas, and to use lead safe work practices when renovating.

Safe work practices. The special methods used to protect workers and residents are referred to as “safe work practices.” For example, interim control activities must be conducted under the supervision of an individual certified as a lead-based paint abatement supervisor or the person conducting the activities must have completed specific training related to lead safe work practices. Examples of safe work practices are wet scraping deteriorated painted surfaces, removing objects in the work area, or covering objects or the floor in the work area with plastic sheeting. The Lead Safe Housing Rule requires that worksites undergo specialized cleaning and lead dust clearance testing, and requires tenants be relocated in some instances.

Exemptions. The Lead Safe Housing Rule doesn’t apply to certain types of rehabilitation and repair work such as emergency repairs and where painted surfaces remain undisturbed.

For emergency repairs, this includes repairs that would be needed to safeguard against “imminent danger to human life, health or safety, or to protect property from further structural damage” such as situations where sites have been damaged by natural disaster, fire, or collapse.

Another class of exemption is for painted surfaces that would remain undisturbed. Any rehabilitation that doesn’t disturb a painted surface (for instance, replacing carpets, light fixtures, or appliances) is exempt. HUD’s rule says disturbing a painted surface means that during the rehabilitation you scrape, sand, cut, or penetrate the painted surface in a manner that generates dust, fumes, or paint chips. If you disturb the painted surface in any way, you must comply with most of the rule’s lead hazard evaluation and reduction requirements and with the notice requirements.

But the rule’s lead safe work practices (such as protecting occupants and using specialized cleaning methods) may not apply to rehabilitation and repair work that disturbs only small amounts of surface area that fit within limits specified in the rule. This is HUD’s “de minimis” threshold to exempt small maintenance and hazard reduction projects that disturb lead-based paint in target housing from the requirement to use lead safe work practices. In such cases, safe work practices aren’t required. In addition to exempting the de minimis projects from lead safe work practices, the projects also don’t require clearance testing and the work isn’t required to be performed or supervised by persons trained in lead safe work practices.

This exemption reduces the financial and operational burden on property owners. According to 24 CFR 35.1350(d), a project falls under the de minimis level when maintenance or hazard reduction activities don’t disturb painted surfaces that total more than:

• 20 square feet on exterior surfaces;
• 2 square feet in any interior room or space; or
• 10 percent of the total surface area on any interior or exterior type component with a small surface area.

Documentation for De Minimis Exemption

In its management alert, OIG pointed out that although HUD requires assisted property owners to identify deteriorated painted surfaces through visual and risk assessments, it doesn’t have a requirement that the size of the area of deteriorated painted surfaces be documented in those assessments or during maintenance and hazard reduction activities. HUD also doesn’t require property owners to maintain evidence, such as a picture of the area with a measurement or a written description of the location and severity of the deterioration, showing that work performed on deteriorated surfaces with lead-based paint was de minimis.

In its audit of the Philadelphia Housing Authority, OIG identified work performed in 43 units where a de minimis determination would have been necessary, and found that the housing authority labeled the work de minimis in 41 of the 43 units (95%). However, in all 41 units, the housing authority’s files didn’t contain documentation that OIG could examine to assess whether the de minimis exemption was applied appropriately. Further, when reviewing the work orders and other support documentation related to the maintenance or repairs performed, OIG was unable to determine whether the work was performed to address the hazards.

As a result, OIG recommends that HUD update applicable requirements to require assisted property owners, including PHAs, to maintain adequate documentation to support their determinations that maintenance and hazard reduction activities that disturb surfaces with lead-based paint qualify for the de minimis exemption from lead safe work practices under the Lead Safe Housing Rule.

HUD has responded that it would provide a Lead Safe Housing Rule notice on the de minimis exemption, which will include details about the regulatory requirements and best practices for implementing those requirements, to all assisted housing owners and PHAs and collect additional data on how HUD-assisted property owners determine how much paint will be disturbed during a maintenance or rehabilitation project de minimis threshold.

• Management Alert (2023-IG-001)