Will regulated entities have to perform retroactive requirements based off of the November 12, 2024 final rule entitled “Reconsideration of the Dust-Lead Hazard Standards and Dust-Lead Post-Abatement Clearance Levels” (89 FR 89416)?

Answer: No. The November 12, 2024 final rule entitled “Reconsideration of the Dust-Lead Hazard Standards and Dust-Lead Post-Abatement Clearance Levels” (89 FR 89416) does not impose retroactive requirements to regulated entities that have previously complied with the Disclosure Rule. In accordance with 40 CFR 745.107, a seller or lessor generally must properly disclose any available records or reports pertaining to known lead-based paint (LBP) and/or LBP hazards before the purchaser or lessee is obligated under any contract to purchase or lease target housing. The seller or lessor is not required to disclose reports or records that may be created in the future, after the close of that transaction. Additionally, any LBP-free certification that was issued by a certified inspector and was issued before the effective date of this rulemaking, is still valid going forward and may continue to be used for exemption of leases from the Disclosure Rule under 40 CFR 745.101(b), as will any LBP-free certification issued on or after the effective date of this rulemaking.

Additionally, the final DLAL of 5 micrograms per square foot (µg/ft ² ) for floors, 40 μg/ft ² for window sills, and 100 μg/ft ² for troughs would not impose retroactive requirements on regulated entities that have previously performed post-abatement clearance. These updated DLAL would only apply to post-abatement dust-lead sampling and analysis conducted after the compliance date for that portion of the final rule (i.e., January 12, 2026) for any LBP activities programs specifically run by EPA, which include (as of November 12, 2024): Alaska, Arizona, Florida, Idaho, Montana, Nevada, New Mexico, New York, South Carolina, South Dakota, Wyoming, American Samoa, Guam, Northern Marianas, and the U.S. Virgin Islands, as well as most Tribal Lands.

Question Number: 23002-XXXXX

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