Safe harbor: workable solutions to lead risk

Until recently, apartment owners and managers desiring to make their units lead-safe have had few clear signals on affordable steps that could be taken to protect both children from exposure to lead and themselves from liability. The principal means of redress for those injured from ingestion of lead has been litigation. In order to shift the focus of the lead hazard reduction debate from the courts after the fact, to the prevention of exposure in the first place, property owners must be provided with clearly defined duties and standards of care which are achievable and effective.

A new legislative approach aimed at reducing exposure to lead was developed by the National Multi Housing Council and the National Apartment Association (NAA), both of Washington, D.C., as well as the Chicago-based Institute of Real Estate Management (IREM) in association with Joseph Giamboi of Stroock & Stroock & Lavan, New York. The Lead Exposure Reduction Act responds head-on to the issues which litigation and current regulatory schemes fail to do. The model act establishes both a standard of care for property owners and a scheme to compensate those injured by ingesting lead.

A generation of children, predominantly poor minority children, face a serious threat to their well-being: lead poisoning. Multifamily owners and managers can play a key role in reducing exposure to lead by maintaining intact lead-painted surfaces and reducing dust at unit turnover. The residents complement these efforts by routine cleaning to maintain low dust levels.

Current attempts to address lead poisoning in all pre-1978 private rental housing with a one-size-fits-all solution will foster overly elaborate interventions in most housing while failing to adequately address the problem in deteriorated housing. This approach ignores several fundamental findings, including the concentration of lead poisoning in most cities in relatively few impoverished neighborhoods, the absence of a signature disease or symptoms associated with lead poisoning, and the confounding deficits experienced by children living in poverty in a deteriorated housing environment. Tracked-in lead dust from contaminated soil is also not considered sufficiently. In addition, the current scheme may deplete financial resources available to many owners by requiring lead testing, third-party inspections for deteriorated paint, and lead abatement in housing where there is little threat to children.

Although national studies indicate that blood lead levels are declining rapidly, pockets of children with elevated lead have stubbornly persisted in impoverished areas. These pockets are a symptom of a much broader affordable housing crisis in the United States today. Quality, affordable rental housing is in increasingly short supply and is deteriorating as the cost of maintenance continues to outpace increases in rental incomes. The cost of overzealous lead-based paint abatement work in pre-1978 housing is likely to contribute to the worsening of the current affordable housing supply crisis. This cost will also be with little benefit as intact lead-based paint does not pose an immediate risk to children. Peeling, chipping and flaking lead-based paint, however, does. Paint in this condition is most often found in older, dilapidated affordable housing located in inner cities where approximately 2 million American children reside. The incidence of reported lead poisoning cases is concentrated in these low-income, generally minority-populated areas.

Where paint is intact and does not pose an immediate health risk, broad-based abatement efforts are wasteful of scarce resources and they fail to address the risk from track-in of contaminated soil. The cost of unnecessary paint removal will foster disinvestment and abandonment by the owners of available affordable housing and displace existing tenants with wealthier ones, as rents will need to be raised to cover the substantial expenses that complicated federal and state schemes are likely to demand.

The incidence of elevated blood lead levels in the United States has declined by 90% over the past 15 to 20 years. EPA reports that from 1976 to 1980, 91% (17.8 million) of children under six had blood lead levels over 10 [mu]g/dl -- the Centers for Disease Control's current level of concern -- and that the average lead level was over 12 [mu]/dl. The most recent National Health and Nutrition Examination Survey (NHANES III), covering data for the period of 1988 to 1991 found that less than 8% (approximately 1.7 million according to 1990 U.S. Bureau of the Census data) were above the 10 [mu]/dl threshold, with the average level approximately 3 [mu]g/dl. This sharp decline in average levels is attributed to reductions of lead in air as a result of removal of lead from gasoline, decreases in lead levels in water and discontinuance of lead solder in most metal food containers. Although the decline in average levels represents significant progress, children with the highest lead levels are still threatened and require more intensive prevention efforts. It should be noted that the decline in average lead levels occurred in spite of very little abatement of lead-based paint. In addition, a Rochester, N.Y., study of house dust and child blood lead levels shows no strong correlation between lead-based paint and higher blood lead levels.

Although lead litigation is steadily increasing, the threat of litigation has failed to address the problems created by lead in housing. Lead liability litigation has not established a clear standard of care which home owners should meet to prevent harm to occupants of buildings, nor has it provided fair compensation to the victims of lead poisoning and exoneration of those who should not be found liable. Current lead litigation focuses on compensating the victims after poisoning, rather than preventing lead exposure. Moreover, a disproportionate share of any settlement goes to pay legal costs rather than to the victim. The model act creates an affordable standard of care for property owners and provides a funding source for certain maintenance activities in distressed properties.

To preserve a shrinking resource, privately owned affordable rental units, the elimination of lead-based paint hazards in the nation's rental inventory must be accomplished incrementally with the full support of property owners. Encouragement of ongoing maintenance in affordable housing is an efficient and cost-effective means of reducing peeling, chipping and flaking lead-based paint. Maintenance efforts must be complemented by residents' routine household cleaning and the use of walk-off mats to decrease track-in of contaminated soil.

It is important that legislation embrace an effective maintenance standard that all owners, and particularly small owners, can successfully implement. Smaller properties generally lack the on-site maintenance personnel and standardized building and maintenance procedures that facilitate reduction activities in larger properties. The solution offered by the model act applies to all owners of prehousing 1978 and is specifically pertinent to small property owners (more than 50% of all apartments are in buildings with four or fewer units).

By addressing the underlying problem, deteriorating housing stock, rather than the symptom, lead poisoning, the model act reduces the risk of exposure to lead and improves the general quality of life for affordable housing residents across the United States. Thereby, the enactment of the model act would mark a major advancement in ensuring that all American families have clean, decent and safe housing.

For a copy of a discussion paper and the model act, entitled Reducing Lead Hazards: Targeting Resources Efficiently, contact Carole Aikman in NMHC's office at (202) 659-3381.

Jeanne M. Gorman is vice President for environment on the joint legislative staff of the National Multi Housing Council and the National Apartment Association.

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