A column from the National Multi Housing Council The Residential Lead-Based Paint Hazard Reduction Act (known as Title X) signed into law in 1992 by President Bush required federal agencies including the U.S. Department of Housing and Urban Development (HUD), U.S. Environmental Protection Agency (EPA) and Occupational Safety and Health Administration (OSHA) to issue regulations and guidance documents on issues such as worker training, disclosure of known lead-based paint or lead hazards, certification programs for inspectors and risk assessors, and health-based standards for lead levels in soil and dust.
This was not the first time that the federal government regulated lead in the environment. In 1978, the Consumer Product Safety Commission (CPSC) prohibited adding lead to paints intended for use on residential properties, and the EPA issued regulations that restricted the addition of leaded compounds to automotive fuel.
Title X is particularly noteworthy, however, because it places the responsibility for addressing lead hazards squarely on the shoulders of the residential real estate property owner. Property owners and managers are responsible under Title X for maintaining the condition of lead-based painted surfaces, for example, but should they also be held financially responsible for remediating lead in soil that is the result of widespread environmental lead pollution, rather than the result of deteriorated lead-based paint?
Extent of problem The federal government has spent tens of millions of dollars evaluating lead levels in the environment and attempting to relate environmental exposure to measurable lead levels in children's blood. Although deteriorated lead-based paint is always cited as the primary route by which children are poisoned, there is considerablesuggesting that lead in soil may be more of a risk factor.
Throughout the past 20 years, since lead use has been restricted in gasoline, plumbing solder and plumbing supply pipes, solder in food containers, and tighter controls have been placed on the emission of lead from industrial sources, there has been a dramatic decrease in blood lead levels across age groups. But at the same time, vast quantities of lead are nevertheless being released into the environment from a variety of sources. The Air Resources Board of theEPA has estimated that residents of the state are exposed to about 390 tons of lead in blowing dust each year, which is the result of lead emissions associated with fuels for aviation, marine, construction and farm vehicles, paint and tires.
Miniblinds In June 1996, CPSC warned the American public that imported nonglossy vinyl miniblinds were responsible for at least two cases of lead poisoning in children. Manufacturers apparently used lead as a stabilizer in the plastic and, when exposed to light and heat, as miniblinds are, the plastic matrix disintegrates and leaves a film of lead-containing dust on the surface of the blinds.
According to window covering suppliers, these vinyl miniblinds were in use in more than 80% of residences nationally. CPSC sponsored extensive testing of vinyl miniblinds from various manufacturers and widely disseminated the results of the analysis. Consumers were urged to remove these blinds from their households and replace them with reformulated miniblinds which did not contain lead.
EPA subsequently issued a guidance document under Title X that explained that, although the miniblinds in question did not contain lead-based paint, they may in fact pose a lead hazard if the blinds had a film of dust upon them. Such a film of dust would be required to be disclosed as a "lead hazard" to prospective lessees or purchasers of property constructed prior to 1978.
Not only were property owners "noticed" that a health hazard existed on their property, they risked the penalties under Title X (civil monetary penalties, joint and several liability to the purchaser or lessor in an amount three times actual damages including court costs and attorney and expert witness fees, and civil and criminal sanctions) if they failed to disclose the presence of any dust on these miniblinds as a lead hazard.
This episode has left property owners wondering what other products may have lead added to them and whether they will risk violating the requirements of Title X for failing to disclose (should they become aware of test results) that certain surfaces, like laminated counter tops, contain lead.
Left holding the bag The fact that EPA claims that under Title X it has the authority to regulate lead in all pre-1978 housing "regardless of the source" raises many thorny issues for residential property owners. Take, for instance, HUD's proposed regulation (61 Fed. Reg. 29170, June 7, 1996) which established new requirements for lead-based paint hazard notification, evaluation and reduction, including a health-based standard developed by EPA under Title X for dealing with lead-contaminated soil on residential properties.
EPA has published reports that state significant sources of lead in soil include lead from leaded gasoline and other industrial airborne sources; lead-contaminated soil is likely to have nothing at all to do with lead-based paint.
Using HUD's estimates that only 8% of the nation's estimated 36 million rental housing units have soil with lead levels between 400 and 2,000 parts per million (ppm) that would require the use of "interim control" measures (e.g. soil cover) and that the estimated cost for "soil cover" is $10 for each unit of a multifamily property and $200 for each single-family unit, rental property owners face approximately $231 million in costs to protect their residents from unhealthy levels of lead found in the soil on the property.
When the lead level in the soil is found to be extremely high (over 400 ppm in children's play areas or over 5,000 ppm anywhere else), the property owner is faced with a bigger bill. Again referring to HUD and EPA published data, abating soil lead hazards (e.g. removing/replacing the soil or providing permanent cover) would be necessary in 3% of the nation's rental housing units, and the estimated cost of abatement would be $250 per multifamily unit and $5,000 for each single-family unit. The cost to rental property owners would exceed $2 billion.
Conclusions Significant advances have been made in reducing lead exposure throughout the country. Government data collected between 1991 and 1994 show that the average blood lead level is 2.3 ug/dl; 30 years ago the national average was more than 10 times higher. In fact, the current blood lead level at which poisoning is defined (20 ug/dl) is lower than the former national average blood lead levels.
Legislative interventions such as the Clean Air Act, which called for the phasing out of lead-containing gasoline and required the installation of pollution control devices to reduce industrial emissions of lead-contaminated gases, and the Safe Drinking Water Act, which requires water suppliers to control lead levels in water, have achieved remarkable results. Furthermore, restrictions on the use of lead-based paint on children's toys have also limited the exposure of children who are extremely vulnerable to lead intoxication.
Title X properly addresses housing that may have deteriorated lead-based painted surfaces. Routine maintenance practices carried out appropriately are the surest defense against the development of lead hazards associated with painted surfaces.
But just as society-at-large, as represented by individual municipalities or states, is responsible for remedying the larger issue of lead contamination of water and air, the issue of lead-contaminated soil should be addressedbroadly and not as the exclusive responsibility of the residential property owner. Under current environmental laws, responsibility for addressing pollution such as soil contaminated with lead from a myriad of sources has not been the exclusive responsibility of the property owner.
Traditionally, all parties responsible for the pollution are held accountable for remediation and restoration. Under this scenario, residential real property owners would be held liabile if any lead-based paint they may have used on the structure contributed to the overall level of soil contamination, and other responsible parties would be required to shoulder their share of the burden.
It is time for Washington to re-examine policies which unfairly demand that residential property owners be responsible for a broad-based environmental issue that is substantively well beyond their control.
Eileen Lee, Ph.D., is vice president of environment on the Washington, D.C.-based National Multi Housing Council/National Apartment Association Joint Legislative Staff. Patrick Connor is president of CONNOR Environmental Services & Engineering Assessments, Baltimore, Md., and a member of the National Multi Housing Council.