Lesson 13: Lead-based paint under 24 CFR Part 35

Lead-based paint rules exist because dust and paint chips from disturbed old paint poison children, and the poisoning is permanent. For a grantee doing single family rehabilitation, this is not a side compliance topic. It is one of the two or three rules that will actually change what work you scope, what it costs, and how long it takes. Get the tier wrong and you either under protect an occupant or blow your budget on abatement you never needed.

Does the rule apply at all: 24 CFR 35.115

The trigger is the construction date. Housing built on or after January 1, 1978 is exempt from Part 35, because that is when lead paint for residential use was banned nationally. Some jurisdictions banned it earlier, and a local ban date controls if it is earlier than 1978.

Beyond the date test, several other categories are exempt: zero-bedroom units, including single room occupancy; property where an inspection found no lead-based paint; property where all lead-based paint was removed and clearance was achieved; unoccupied property scheduled for demolition; non-residential portions of a property, other than common passageways; rehabilitation that does not disturb any painted surface; emergency action taken to prevent imminent danger; property seized by federal law enforcement and held under 270 days; emergency or foreclosure prevention rental assistance expiring within 100 days; exterior work delayed by unsuitable weather; and, when the State Historic Preservation Office asks, historic properties doing interim controls in place of abatement.

One exemption is easy to misread, and GCHS will run into it constantly. Part 35 exempts housing for the elderly, or a residential property designated exclusively for persons with disabilities, unless a child under 6 lives there or is expected to live there. But "housing for the elderly" is a defined term in 35.110: retirement communities or similar housing reserved for households with one or more persons 62 or older at the time of initial occupancy. An ordinary house that happens to belong to an elderly person is not exempt on that basis, and neither is a house where someone with a disability lives. GCHS serves elderly and disabled homeowners in older Gulf Coast housing stock, so do not assume an owner occupied elderly household is out of scope. Even inside a qualifying age restricted property, the exemption ends when a child under 6 lives there or is expected to reside there, which the rule defines as actual knowledge that a child will live in the unit (a resident known to be pregnant counts). Ask the question at intake.

The three tiers: 24 CFR 35.930

Once you know Part 35 applies, everything else turns on one number: the amount of federal rehabilitation assistance per unit. The obligations are built up in layers: testing or presumption and safe work practices run through every tier, and each higher tier adds duties.

Two narrow exceptions sit inside that table. At the lowest tier, clearance is not required if the work disturbed no more painted surface area than the de minimis threshold set in 35.1350(d). At the top tier, interim controls are acceptable in place of abatement on exterior surfaces the rehabilitation did not disturb, and on paint-lead hazards that fall below the de minimis limits. Those limits, in 35.1350(d), are painted surface totals of no more than 20 square feet on exterior surfaces, 2 square feet in any one interior room or space, or 10 percent of the total surface area of a small component type such as window sills, baseboards or trim. Also at the lowest tier, if paint testing shows the disturbed surfaces are not lead-based paint, safe work practices and clearance are not required.

The pattern to carry into the field: more federal money per unit means more obligation. Testing or presumption happens at every tier, no exception. Risk assessment and interim controls start at the $5,000 line. Full abatement is reserved for the $25,000 line and above.

Calculating assistance per unit: 24 CFR 35.915

This is where programs get the tier wrong, so work through it carefully. The figure that decides your tier is the lesser of two numbers: the average federal assistance per assisted unit, or the average per unit hard costs of rehabilitation.

Federal assistance for this calculation means all federal funds assisting the project, regardless of what they are used for. That includes acquisition, construction, permits and fees, not just the line item you think of as the rehab budget. If more than one federal source touches the project, all of it counts.

Hard costs, by contrast, exclude the lead work itself: evaluation, remediation, site preparation, occupant protection, relocation, interim controls, abatement, clearance and lead waste handling are all left out of the hard costs figure. The reason is straightforward. If the cost of complying with Part 35 counted toward the number that decides how much compliance you owe, a program could get pushed into abatement purely because abatement itself is expensive. The rule keeps the compliance cost out of the number that triggers compliance.

Where a project mixes assisted and unassisted units, only the assisted units go in the numerator for unit-specific costs, and shared costs are spread across every unit, assisted or not:

per unit hard costs = (unit specific costs divided by number of assisted units) plus (common area and exterior costs divided by total units in the project)

Run both the federal assistance figure and the hard costs figure, then use whichever is lower. That lower number is what you compare against the $5,000 and $25,000 lines in 35.930.

Notification: 24 CFR 35.125 and 35.130

Three items travel with a job that falls under Part 35 once evaluation or hazard reduction is done:

• A lead hazard information pamphlet (35.130), EPA approved, unless it has already been delivered to the occupant under the disclosure rule or the renovation hazard education rule.
• A notice of evaluation or presumption, delivered within 15 calendar days of receiving the evaluation report or making the presumption. It states the nature, dates, scope and results of the evaluation (or the nature and scope of the presumption), a contact, and the date.
• A notice of hazard reduction, delivered within 15 calendar days of completing the work. It summarizes what was done, the clearance results, where any lead-based paint remains in the unit, a contact, and the date. It is not required when no clearance examination is required.

Both 15 day clocks run from an event, not from the start of the job, so track them separately from your rehabilitation schedule.

In practice for single family rehabilitation

For a small grantee running owner-occupied rehab, Part 35 shows up on almost every pre-1978 house you touch. Build the workflow around three questions, asked in order. First, does an exemption apply, and if the house is elderly or disability occupied, is a child under 6 present or expected. Second, once you know Part 35 applies, what is the federal assistance per unit, calculated as the lesser of total federal assistance and hard costs, with the lead work itself stripped out of the hard costs side. Third, does that number land in the $5,000, the $25,000, or above the $25,000 tier, because that answer tells your contractor whether they are doing clearance work, interim controls, or abatement, and tells your file what notices are due and when. Get this sequence wrong and you either expose an occupant to a hazard you were supposed to fix, or you pay for abatement the file never required.