Lead Poisoning Legislation Poised for Consideration Next Year

August 1, 2006

Author: Michael Hanley

Despite an impressive session-end showing of support from housing advocates (as well as from health professionals, educators, trial lawyers and even the National Paint and Coatings Association), the Childhood Lead Poisoning Prevention and Safe Housing Act, (A. 4201-D / S. 2513-D) just didn’t have enough time to clear all of the committees it needed to get through in order to become law this year.  Nevertheless, the key sponsors of the bill, David Gantt in the Assembly and Joseph Robach in the Senate, have made the lead poisoning prevention legislation a high priority.  Moreover, the increased attention paid to the bill in both houses during the closing days of the session suggests that it is poised for serious consideration next year. 

Undoubtedly legal services housing advocates will be called upon once again in the next session to support the bill.  To help you address concerns you may hear raised regarding the substantive provisions of the legislation, what follows is an overview of the building inspection provisions of the proposed legislation, as well as a summary of the incentives and financial assistance that are included in the legislation to assist property owners to remove lead-paint hazards.

Primary Prevention.

Under current state law, a building is not inspected for lead-paint hazards until a child has already been poisoned.  That’s called “secondary” prevention.  The Public Health Law (§§ 1370 et seq) only requires inspections when a child already has an elevated blood lead level (EBL).  By then it is too late for that child -- injuries caused to the brain by lead poisoning are irreversible.  What’s needed is a system for “primary” prevention, that is, a system under which we inspect the most dangerous buildings for lead hazards before children are poisoned.  Unfortunately, the state’s building code, the “Property Maintenance Code” (19 NYCRR part 1226), promulgated under the state’s Uniform Fire Prevention and Building Code (Executive Law, Article 18), doesn’t even make lead-paint hazards a violation at all, let alone require proactive inspections. 

Currently, local building inspectors do not inspect for lead-paint hazards unless a local law making such hazards code violations has been adopted.  Such code provisions exist in Buffalo, Rochester and New York City, but only Rochester truly has a “primary prevention” plan, i.e. a code enforcement system that affirmatively requires inspections of at-risk buildings.  Although municipal building inspectors in other cities may cite landlords for “deteriorated paint,” doing so actually increases the risk of lead poisoning for a child because a landlord who gets out a paint scrapper (instead of using the simple “lead safe work practices” that are required to remove lead-paint hazards) is actually more likely to expose a child to the lead-paint chips and invisible lead-paint dust that are poison the small child who is most likely to exhibit “hand-to-mouth” behaviors. 

Although lead paint poisoning is a serious problem across the entire state, it turns out that when the actual incidents of lead poisoning are mapped, those maps reveal that there are very concentrated areas of the state where the problem is much more severe.  Lead-poisoning, not surprisingly, is highly correlated with poverty, the age of the housing stock, and the presence of families with children.  Additionally, there is a high correlation with areas of minority concentration. 

Instead of requiring inspection of all housing units in the state, the proposed legislation adopts a pragmatic approach of only requiring primary prevention plans where they are most needed:

• The legislation narrows the types of housing that need to be inspected (mostly to pre-1970 units), and then further narrows the requirements based upon whether there is “person at risk” in the housing (a child under age 6, or pregnant woman);
• Instead of requiring every municipality in the state to implement a “primary prevention” plan, the legislation would have Department of Health (DOH) identify the 30 municipalities with the highest incidents of lead poisoning and require plans for those areas only – that’s just 3% of the 1009 municipalities (cities, towns or villages) in the state, but will include nearly 90% of the children who are likely to be poisoned. These municipalities are called “Communities of Concern.”
• Instead of imposing burdensome and technical requirements, in the thirty Communities of Concern, the legislation allows health officials, working with local building code enforcement officials, to design locally responsive “primary prevention” plans.  These local plans might include a mix of outreach and educational activities, and could include inspections when warranted.  Local planning allows for primary prevention plans that take into account the geography, type of housing and the population of the area, but would take advantage of “best practices” models identified by the state Commissioner.
• As an additional safeguard, the state DOH would use its current databases to identify specific neighborhoods (census “block groups” or “tracts”) where more than 25 children have been poisoned. These hotspots are called “Areas of High Risk.”  In the Areas of High Risk the primary prevention plan would be more specific, and would include inspections of the housing most likely to pose the greatest risks.
• Instead of requiring that every housing unit be inspected by certified personnel, the legislation relies, in the first instance, upon inspections by property owners themselves.  Doing so not only reduces the cost to the owner and speeds the process, but also takes advantage of court rulings that require owners to fix dangerous conditions once they become aware that they may pose lead-paint hazards.  Additionally, the owner-inspection requirement will make existing federal laws regarding disclosure of known hazards more effective.  And, as a safeguard, the legislation authorizes tenants to ask for inspections when they suspect that lead-paint hazards exist, thus providing critical protections to occupants.

Incentives and Assistance for Property Owners.

Recognizing the importance of assisting property owners to make their units lead-safe, the legislation provides incentives and financial assistance to landlords by creating a low-interest revolving loan fund and offering tax credits to owners.

• The Childhood Lead Poisoning Prevention and Safe Housing Act will make tax credits available to most property-owners who renovate their rental units or homes in order to eliminate or reduce lead-paint hazards.
• The tax credits, for both individual and corporate property owners, would be available on a matching basis, that is, for up to half of the cost for bringing an at-risk housing unit into compliance with the provisions of the act.
• A tax credit of up to $2,500 is available for each rental unit that is rendered either “lead-free” or “lead-contained” under the Act.
• A tax credit of up to $1,250 is available for each rental unit where repairs or renovations with an expected life of at least ten years have been made that satisfy the requirements for meeting a more easily achieved classification identified as “lead-stabilized” unit under the Act.
• In light of the comprehensive local law that already exists, the legislation would impose no new inspection obligations upon property owners in New York City, but all of the financial assistance provided in the legislation would be equally available to New York City residential property-owners.
• The tax credits are available for those who own and occupy their own homes, as well as for landlords.

The proposed legislation is likely to undergo extensive negotiations in the next few months in order to assure that the Assembly and Senate bills are identical, and to address the emerging concerns of opponents (mostly property owners associations not familiar with the bills provisions).  There are likely to be changes ahead.  As discussions get underway it will be critical that the communities most affected by lead poisoning – typically our legal services clients -- be at the table to assure the protections of the bill are not watered-down.  If you or groups you work with would like more information about the proposed legislation or would like a presentation on the provisions of the bill, please call Michael Hanley at the Empire Justice Center’s Rochester office, (585) 295-5723.