One of the key “non-scope considerations” commonly investigated during environmental due diligence for commercial property transfers is assessment of any lead impacts from lead-based paint (LBP) and lead dust.  Although the use of LBP was banned in 1978, many structures constructed before that date retain LBP on surfaces.  As that LBP deteriorates over time, it creates lead dust that can create hazardous exposure risks.

US EPA has addressed lead under a variety of federal laws including the Toxic Substances Control Act (TSCA), the Residential Lead-Based Paint Hazard Reduction Act of 1992, Clean Air Act, Clean Water Act, and others.  These laws, and various rules promulgated thereunder, work together to comprehensively address lead hazards, including establishing safe work practices during renovations, training and certification for abatement contractors, and disclosure of LBP during sale or lease of residential properties.  In particular, Section 402 and 403 of TSCA establish hazard standards and clearance levels for lead in paint, dust and soil, which are carried through to US EPA’s lead-based paint activity regulations.

On October 27, 2020, the US Court of Appeals for the Ninth Circuit heard oral argument in an appeal of US EPA’s July 9, 2019 final rule addressing the Agency’s review of the current dust-lead hazard standards (DLHS) and the definition of LBP.