Landau is one of the many landlords and realtors fined by the EPA for failing to provide an “EPA-approved” pamphlet to tenants seeking to rent or buy a house built before 1978.
And for the EPA, the non-compliance business is booming.
Juan Hernandez of Bridgeport, Conn., faces seven “Level 1” violations for failing to provide seven tenants with a copy of the “Protect Your Family From Lead In Your Home” pamphlet, which was mandated by the Residential Lead-Based Paint Hazard Reduction Act of 1992.
In Section 1018 of the law, Congress directed the Department of Housing and Urban Development (HUD) and the EPA to require the disclosure of lead-based paint hazards before the sale or lease of housing units built before 1978, the year lead-based paint was banned.
The EPA filed a complaint against Hernandez on March 27, detailing notifying him that the agency plans to collect $49,980 from him, which works out to $7,140 for each pamphlet he failed to distribute.
“Failure to provide a purchases or lessee an EPA-approved lead hazard information pamphlet pursuant to 40 C.F.R. § 745.1 07(a)(I) results in a high probability of impairing the lessee’s ability to properly assess information regarding the risks associated with exposure to lead-based paint and to weigh this information with regard to leasing the target housing in question,” the complaint read.
Hernandez’s total fine for other disclosure violations, such as supplying the property’s lead history and a “Lead Warning Statement,” reached $127,150, payable to the "Treasurer of the United States of America."
The EPA says the penalties are justified because lead exposure – a concern when the paint is flaking -- can be hazardous to young children and can lead to damage to the brain and nervous system. Thus the agency requires landlords to provide information about the risks involved.
The pamphlet offers tips to “protect your family,” such as keep play areas clean, keep children from chewing window sills or other painted surfaces, and clean up paint chips immediately.
Available in six different languages, including Spanish, Vietnamese, Russian, Arabic and Somali, the pamphlet is “printed with vegetable oil-based inks on recyclable paper,” it states.
The 13-page pamphlet is available online, or landlords may get one free copy from the National Lead Information Clearinghouse. They may also pay $26 for 50 copies from the U.S. Government Printing Office.
The EPA told CNSNews.com that under the Toxic Substances Control Act (TSCA) the agency has the authority to “inspect, subpoena documents, require testimony and bring civil administrative actions in target housing (housing, schools and daycares built before 1978).”
That means houses or apartment built before 1978 are subject to inspection at any time by an EPA inspector to make sure sellers and landlords are in compliance with the law.
In calculating the penalty, the EPA says it takes into account "the nature, circumstances, extent (whether children or pregnant women are affected) and gravity" of the violation -- as well as the violator's ability to pay and continue doing business. The rules for assessing the penalty run 12 pages.
Violations can often be settled with the EPA and result in lower fines. In fact, the EPA awards discounts of up to 30 percent for a cooperative “attitude” in cases that are settled prior to a hearing.
The EPA make its clear that the penalty must be enough to create an incentive for landlords and realtors to comply with the law. No one should profit by violating the disclosure rule, in other words.
Several cases have led to penalties as high as $50,000 for failure to distribute the EPA brochures.
In September 2011, Douglas Paulino of Hartford, Conn., failed to provide the EPA-approved pamphlet to six lessees, resulting in a fine of $49,700, according to an Initial Decision and Default Order.
A Default Order also was filed against John C. Jones of Roxbury, Massachusetts, in February 2012, when a penalty of $30,960 was levied for not providing the pamphlet to four tenants.
Lester Sykes, of Chicago, Illinois, was penalized $54,180 for 11 counts of failing to provide the lead hazards pamphlet in October of 2011. Sykes was ordered to pay total fines of $159,310 after he failed to respond to a complaint filed against him in 2008.
According to the EPA’s enforcement and penalty policy, individuals who knowingly violate a disclosure rule can face up to a year in prison and a maximum criminal fine of $25,000 for each day of the violation. Individuals can be fined a maximum of $100,000 for a single violation that does not result in death, while organizations can be fined up to $200,000 per count.
In addition, landlords can still be fined even if they prove that their property is free of lead-based paint. In that case, the EPA will merely “adjust the proposed penalty downward.”
“EPA may adjust the proposed penalty downward by up to 50 percent if the violator provides documentation that clearly demonstrates that the target housing was interior lead-based paint free in accordance with applicable state and/or local requirements at the time the alleged violation occurred,” the policy states.