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Getting the lead out.

Will lead-based paint become the financial straw that breaks the back of affordable housing, or are there ways to reduce the hazard and save the housing?

Little kids face hazards everywhere they toddle: Falls, Burns. Second-hand smoke. Car accidents. Lead. Lead? Yes, lead-based paint, found in two-thirds of all U.S. housing, is the top environmental health hazard for young children. Ingested, it reduces their intelligence, memory, concentration and coordination - all without any signs of poisoning.

And it is pervasive. Half the houses and apartments in Baltimore, New York City, Cleveland, Chicago and Philadelphia have potential hazards from lead-based paint. The cost of dealing with it could make housing too expensive for many people.

"There's a crisis in affordable housing," says Nick Farr, former vice president of The Enterprise Foundation, a low-income housing organization. "From Boston to Washington, Cleveland to St. Louis, even in California, litigation is on the rise, insurers are withdrawing coverage, banks and lending institutions are refusing to loan, all because of lead."

"The worse the condition of the housing, the greater the likelihood of lead hazards," adds Farr.

The combination of older housing, peeling paint and little kids makes for a dangerous mixture. Leaded paint can be found on the walls, but intact lead-based paint is not the problem. The bigger danger is painted windows and window sills, door jambs, even crevasses in the floor, any place leaded dust can collect. Making a home safe often requires replacing windows, removing carpeting or even calling for special lead-abatement procedures where professional workers remove the lead paint and dust. Costs can range from a couple of hundred dollars to $20,000 to $30,000 per unit.

Funds are available for states from the Department of Housing and Urban Development (HUD) to remove lead, but HUD requires states to enact legislation to certify professional lead inspectors.

The cost and difficulty of removing lead make landlords reluctant to do it. And even when they do, they still can be sued if a tenant becomes poisoned.

"We're being sued out of business," says Elliot Dackman, a Baltimore rental property owner. "Insurance became unavailable, investment in Baltimore dried up, there's a tremendous amount of abandonment."

On the other hand, kids are being poisoned. "Lead paint hazards are a very real threat to our children's health," says Don Ryan, director of the Alliance To End Childhood Lead Poisoning. "For decades, we have fumbled badly with how to deal with lead-based paint. It's not going to go away this year - or in 10 years. What we need are lead safety standards that are workable and protective - and ways to get them implemented in millions of privately owned units."

Lead has long been known to be dangerous. Studies done earlier this century caused lead to be regulated in Europe. Even Ben Franklin wrote to a friend in 1786 about the "mischievous Effect from Lead," noting that he never drank rain water off roofs painted with white lead.

Only in the past 10 to 15 years, however, have low levels of lead, amounts that can be ingested from paint dust and soil, been proved harmful. Children and pregnant women are particularly vulnerable to this type of lead poisoning. An estimated 1.7 million children under age 6 have lead in their blood above 10 micrograms per deciliter, the highest level considered safe by the Centers for Disease Control and Prevention (CDC).


The question for state legislatures is how to provide property owners reasonable relief from liability while ensuring that children have safe places to live. For six years, New York has struggled with legislation, but continues to get bogged down over standards to make properties safe. Its inability to enact legislation has jeopardized almost $20 million in federal money earmarked for lead removal. The city of Albany alone lost $6 million.

City officials are frustrated. Albany Alderman Tom Nitido says, "It's outrageous that the Legislature can't pass a lead hazard reduction bill. Property owners, insurance companies, banks and child advocates are all clamoring for guidance from the Legislature. Having it blocked over maintenance standards is ridiculous."

But deciding standards is difficult. "Realtors want low standards to avoid lawsuits. New York City wants low standards to limit the number of abatements. The trial lawyers and environmental community are fighting for high standards. The kids are caught in the middle," says Norman McConney, chief of staff to Deputy Speaker Arthur Eve.

Maryland faced a similar problem. Delegate Sandy Rosenberg, working with the affected groups, sponsored a bill that requires owners of properties to register their properties, make their property lead-safe and maintain it, and make a monetary offer to lead-poisoned tenants in exchange for immunity from liability in excess of specified amounts. This law allows property owners to permanently remove lead from their properties or implement interim procedures to temporarily control lead hazards in their units.

"No one was winning under the [former] situation," Rosenberg says. "We sought to create a system to encourage landlords to reduce lead-based risks short of removing the paint."

Child advocates, however, are disappointed in the Maryland law and hope states will pass more stringent ones. "It provides too much amnesty for property owners," says Don Ryan. "It fails to require independently conducted dust tests to ensure that units are safe for children."


A resource for lawmakers agonizing over legislation that will protect children from lead hazards while preserving affordable housing is a report from a national task force convened by the Department of Housing and Urban Development (HUD).

Put together by advocates for children and low-income housing, property owners and real estate interests, insurers, mortgage lenders, state organizations and federal agencies, the report is a balanced and comprehensive set of recommendations. At the heart of the task force report is a set of recommendations for controlling lead hazards called the "benchmark standards." One set of standards is applicable to all housing built before 1978, the second is for housing most likely to contain lead hazards.

"We wanted an approach consistent with public health needs that offers choices to the housing market," says Dave Jacobs, a member of the task force who now heads HUD's Office of Lead-Based Paint Abatement and Poisoning Prevention.

The task force addresses litigation by recommending that state legislatures adopt incentives for property owners. Owners who comply with benchmark standards and are later sued may offer to compensate the tenant to cover such costs as relocation and unreimbursed medical expenses. Tenants who refuse the offer may still sue, but the suit may have monetary caps or other limitations on liability.

The task force report offers recommendations for rental property owners, the insurance industry, lending institutions, community-based organizations and the federal government. But the most critical recommendations are aimed at state legislatures and agencies.

"The federal government is limited in what it can do," continues Jacobs. "HUD can't dictate what is done in private housing markets. It's in the hands of the states."


Many states have begun to look at the task force report.

"We used the task force as a backdrop for our discussions," says Representative Kerry Kurt, principal sponsor of Vermont's bill. "The recommendations to develop benchmark standards were critical in designing our bill."

Vermont sought to avoid the problems of abandonment and litigation occurring in other Northeastern states.

"What we came up with is not perfect," adds Kurt, "but it accommodates property owners' legitimate concerns over legal liability and greatly improves the protection of children's health."

In Ohio, the legislature is using the task force report to clearly define owners' responsibilities to prevent lead poisoning when renting to families. "We want to avoid the litigation mess that we saw with asbestos," says Senator Grace Drake.

Not everyone supports the task force's approach. In New York, child rights lawyers have balked at offering liability limitations to property owners. But children's lawyers who served on the task force agreed to its recommendations.

"The task force approach in no way compromises the ability of poisoned kids to receive compensation," says Stephanie Pollock, chair of the task force's liability subcommittee and longtime advocate of preventing lead poisoning. "Not using the tort system benefits both property owners and children. The task force provides for fair compensation for lead-poisoned kids. The benchmark standards will protect children from lead poisoning."

Jacobs agrees. "The standards are based on established levels and independent testing. This is a scientifically valid approach to protecting children from lead-based paint hazards."

Connecticut followed the task force report in developing legislation; New Jersey and Wisconsin have convened similar state task forces to look at making private housing lead-safe. New Jersey is especially concerned that the kind of litigation seen in New York and Baltimore does not arise.

"The conclusions of the task force could help all of us," concludes Nitido.


Congress in 1992 directed the Department of Housing and Urban Development (HUD) to assemble a national task force to deal with lead hazards in private housing. This task force, composed of children's and housing advocates, representatives of property owners and real estate interest, insurers and mortgage lenders, and state and federal agencies and organizations, produced a report in July 1995, "Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing." This report outlines 59 task force recommendations (17 directed at state governments) designed to make private housing safe for children.

The core of the task force's approach to dealing with lead hazards are the "benchmark standards," for basic maintenance and hazards control.

The first set of standards recommends a series of low cost, common sense maintenance practices designed to avoid creation of lead-based paint hazards a nd to ensure rapid and safe responses to deteriorating paint. It also calls for property owners to identify and control any lead-based paint hazards if a child with lead poisoning lives in their unit or if lead hazards are discovered. These standards are considered the minimum steps that property owners should take to protect children.

The second set of standards is designed for units that pose a greater risk of lead hazards. For these units, property owners must have a risk assessment done to identify and control any lead hazards. Alternatively, the owner can forgo the assessment and implement a standard set of hazard control measures.

The task force determined that states that adopt the benchmark standards would substantially protect children from residential lead-based paint hazards.

To encourage property owners to follow the benchmark standards, the task force recommended a series of incentives including limitations on liability and guarantees of affordable insurance.

To receive a copy of the task force report, call HUDUSER at (800) 245-5154.


The National Conference of State Legislatures, along with the Alliance To End Childhood Lead Poisoning worked with several members of the HUD task force to draft model language for legislators. The Residential Lead-Based Paint Hazard Evaluation and Control Act: model Legislative Language guides state legislators through the recommendations and policies of the task force. Each applicable recommendation is reworked into language that may be adopted as legislation. Explanations for the rationale behind the task force's reasoning are included for many of the recommendations.

For a copy or for more information on the legislators' guide, call Doug Farquhar at NCSL or Pierre Erville at the Alliance To End Childhood Lead Poisoning at (202) 543-1147.

Doug Farquhar tracks environmental health issues for NCSL.
COPYRIGHT 1996 National Conference of State Legislatures
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Title Annotation:includes related articles; liability for lead-based paint hazards in housing
Author:Farquhar, Doug
Publication:State Legislatures
Date:Dec 1, 1996
Previous Article:Kids and tobacco.
Next Article:Federalism issues: year-end wrap-up.

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