For owners of older residential real estate, lead based paint can seem like a problem from another era. It is not. A recent U.S. Environmental Protection Agency settlement involving an apartment complex in Putnam, Connecticut, is a useful reminder that lead based paint compliance remains a current environmental, public health and real estate liability issue.
The EPA recently announced a settlement with Konover Residential Corporation resolving alleged violations of the federal Toxic Substances Control Act and the Residential Lead Based Paint Hazard Reduction Act. The case involved 11 apartment units at the Cargill Falls Mill property in Putnam. EPA assessed a $359,069 civil penalty and required the company to comply with the federal Lead Based Paint Disclosure Rule going forward.
This case was one of 127 federal enforcement actions related to lead based paint violations commenced last year.
The Cargill Falls Mill is particularly instructive because it is not simply an abandoned or obviously deteriorated property. The historic former cotton mill was converted into an 82 unit mixed use residential complex, with tenants moving in beginning in 2020.
Following resident complaints, EPA conducted an inspection and alleged four disclosure violations involving 11 units:
- Failure to provide the required EPA lead-hazard information pamphlet;
- Failure to include the required Lead Warning Statement in leases;
- Failure to disclose known information concerning lead based paint or lead hazards, or affirmatively state that no such information was known; and
- Failure to provide available lead related records and reports, or indicate that none were available.
The important point for real estate owners is that the EPA did not need to prove that a tenant suffered an injury before enforcing the disclosure requirements. The disclosure obligations themselves matter.
The federal Lead Based Paint Disclosure Rule generally applies to residential housing constructed before 1978, approximately 29.4% of all U.S. housing units. Before a prospective tenant becomes obligated under a lease, landlords must provide an EPA approved lead hazard information pamphlet, disclose known information concerning lead based paint and hazards, provide available records and reports, and include the prescribed Lead Warning Statement in the lease.
These requirements are easy to overlook, particularly when ownership or property management changes. They can also become complicated when a property has multiple buildings, common areas, historical environmental reports, or records generated during redevelopment.
A property manager’s failure to deliver the appropriate disclosure package is not merely a paperwork problem. As the Putnam settlement demonstrates, EPA can treat these requirements as enforceable federal environmental obligations, including those that can give rise to criminal charges.
Maryland Owners Have More to Worry About
For Maryland real estate owners and owners in 38 other states, federal disclosure obligations are only part of the compliance picture.
Maryland has its own Lead Risk Reduction in Housing Law, which applies to pre 1978 rental properties. MDE requires registration, tenant educational materials, and compliance with applicable lead risk reduction standards. At changes in occupancy, affected properties generally must satisfy the Full Risk Reduction Standard and pass a lead contaminated dust inspection before reoccupancy.
MDE also makes clear that compliance is mandatory for pre 1978 rental properties, regardless of renovation history.
That distinction is important. A developer may have substantially renovated a historic building, installed new finishes and created a modern apartment community, but that does not necessarily erase the property’s regulatory history or eliminate lead related obligations.
Baltimore provides perhaps the most compelling illustration of why this issue remains relevant. Baltimore ranks among the worst cities with the highest per capita rate of lead based point impacted housing.
The childhood history of Freddie Gray, whose 2015 death in police custody precipitated widespread unrest in Baltimore, included documented childhood lead exposure. A 2008 lawsuit filed by Gray and his siblings alleged that they were poisoned by lead paint in a Baltimore rental home. Contemporary reporting described peeling paint and elevated blood-lead levels during Gray’s childhood.
It would be inappropriate to suggest that lead exposure caused Gray’s later death or the events surrounding his arrest. But his history illustrates something important for property owners: the consequences of childhood lead exposure can extend far beyond the property where the exposure occurred and far beyond the date on which the exposure happened.
In homes without interior lead based paint, 80% of floor dust samples still exceeded safety thresholds. The research shows that tracking contaminated soil indoors is a major source of lead dust, not just chipped paint.
And there are non residential settings, like childcare centers built before 1978.
Despite that, lead remains a danger; a poll of Maryland voters placed lead based paint remediation and removal near the bottom of environmental priorities.
For owners of older multifamily housing, the Putnam settlement should prompt a compliance review, not complacency.
Owners and managers should confirm that their lease forms contain the required federal and state lead language; tenant files document delivery of the required pamphlet and disclosures; known environmental reports are preserved and disclosed when required; and property management personnel understand that federal and state lead requirements are separate obligations.
For Maryland owners, the review should also include MDE registration, inspection certificates, tenant notices and risk reduction compliance.
Americans still have a serious and pressing problem: the fact that despite lead based paint use being banned decades ago, it lingers in more than 34 million homes is a glaring societal failure we haven’t fully tackled yet. And the legal obligations surrounding the lead that remains in America’s buildings have not disappeared.
The $359,069 Putnam settlement is a timely reminder that, for real estate owners, lead compliance is not a historical footnote. It remains an active environmental enforcement issue, and one that can carry significant financial, operational, and reputational consequences.
