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A Bill That Helps End Lead Poisoning

by Matthew Chachère and Andrea Rodriguez, Feb 02, 2004
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Injuries to children from lead paint cause irreparable harm - brain damage that is irreversible, nervous system disorders, delays in development, and many other permanent conditions. Lead poisoning robs vulnerable children of the potential to become all they might be, and particularly afflicts children of color, who represent nearly 95 percent of the victims in New York City, according to a report (in pdf format) by the Department of Health and Mental Hygiene.

A new law, which the New York City Council is expected to enact this week, is the product of many lessons learned in the struggle against pediatric lead poisoning in the decades since the city first banned lead paint in 1960. Yet when the council members vote, it will be in defiance of Mayor Michael Bloomberg, who vetoed the bill (in pdf format) in December. He was wrong to do so.

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A CONTINUING AFFLICTION

"Childhood lead poisoning remains a significant public health problem in New York City," according to the New York City Department of Housing Preservation and Development(in pdf format) "Over the last five years, more than 35,000 NYC children have been newly identified as having elevated blood lead levels." In fact, the numbers may be far higher, since less than a third of children are actually tested, according to the Health Department (in pdf format).

According to studies(in pdf format) by Dr. Philip Landrigan of Mt. Sinai Medical Center, the social costs of childhood lead poisoning in New York City alone are in excess of $1.27 billion a year.

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THE OLD LAWS

The history of efforts to combat this problem is long and convoluted, some of it detailed online by the New York City Coalition to End Lead Poisoning . In 1982, the city passed Local Law 1, which required the abatement of all lead paint, in any condition, in homes where young children reside. While many experts believe that full abatement is, in the long term, the best way to prevent lead poisoning, and in the long run more cost-effective, there were concerns about the immediate costs of such an effort.

The 1982 law was replaced by Local Law 38 in 1999. That law was criticized by virtually every expert in the field as far too constrained, limiting landlord responsibilities only to peeling paint, and leaving out lead dust and the conditions that cause lead dust.

Indeed, the failure of the law to consider lead dust was a key reason why the state’s highest court, the New York Court of Appeals, last year struck down Local Law 38, after declaring that the "numbers of New York City children with elevated blood lead levels remain alarmingly high."

The high court's decision gave new impetus for the City Council to re-examine the current lead poisoning prevention policies, and on December 15, 2003, by a vote of 44 to 5, the council passed a new lead poisoning prevention bill, Intro 101A. The mayor vetoed it later that month.

THE NEW LAW

The new bill represents, in significant part, an attempt to find a middle ground between the 1982 law (which is the law under which the city began operating again starting last year ) and the now nullified 1999 law.

The overall approach of the new bill is to recognize that if landlords are going to be permitted to leave lead paint in place, they must be proactive in assuring that the lead remains in a condition that is not immediately hazardous to the occupants. Thus, while the new law will not require the 1982 law’s full abatement, it will continue the mandate that owners maintain a safe dwelling at all times, using their knowledge of the particular characteristics of the buildings they manage. And more specifically, it requires that work involving repairs or disturbance of lead paint always be done by properly trained personnel using safe work practices. They must be particularly mindful of lead dust, which is so highly toxic that a particle less than the size of a grain of coffee sweetener is sufficient to inflict brain damage on a child.

Under the new law, landlords will be required to actively ascertain whether children under the age of seven reside in multiple dwellings units (as under the window guard law) and if so, must inspect those units at least once a year (and more often if necessary) for lead hazards, and promptly and safely correct them. Lead hazards can include not just peeling paint, but also "friction surfaces" (painted surfaces that bind and rub), "impact surfaces" (painted surfaces that get damaged by banging), and "chewable surfaces" (those that teething infants are mouthing). Lead dust is also a defined hazard, and peeling lead paint in common areas must also be corrected.

RESPONDING TO THE CRITICS

The arguments of the mayor and other opponents of the bill, such as Julia Vitullo-Martin of the Manhattan Institute writing in Gotham Gazette in December, seem to be based on misstatements of the plain language of the law, as well as wholly unsubstantiated scaremongering. We have written a detailed point-by-point response to Vitullo-Martin’s article, and a response to the mayor's veto. In general, they are claiming that requiring landlords to maintain their rental properties so as not to be hazardous to the occupants will result in buildings that become poorly maintained or even abandoned. This is Alice-in-Wonderland reasoning -- requiring something to be safe will make it unsafe -- and is reminiscent of arguments undoubtedly made at every juncture in the history of housing reform in New York, going back to the requirement of indoor plumbing and adequate air and light when the tenement laws were reformed a century ago. As in the past, these will prove to be unfounded.

Equally unfounded are assertions that the bill will make conscientious, responsible owners liable. The problem has never been conscientious owners -- by definition they don't poison children, and one can't be held liable unless there is a victim. While the number of children lead-poisoned each year remains shockingly high, it is still a relatively small percentage of the potential threat; the city estimates there are 300,000 apartments with both some lead painted surfaces and young children in residence. Thus, it is readily apparent that most landlords already are capable and diligent in keeping their buildings in safe repair, and careful, responsible property owners should have no reason to fear the new law. The problem, rather, is the reckless or negligent landlords who cause great injury to our children, and who should continue to be accountable for the consequences. What possible social policy is advanced by changing ours law to immunize them?

It is national policy(in pdf format) that childhood lead poisoning be eliminated by 2010. Given that New York City was one of the first jurisdictions in the nation to ban lead paint, New Yorkers should be seeking to achieve that goal even earlier. Intro 101A is a major step in that direction.

--Matthew Chachère and Andrea Rodriguez are staff attorneys at Northern Manhattan Improvement Corp. Legal Services, which represented the plaintiffs in the lawsuit that overturned Local Law 38 of 1999 (NYCCELP v. Vallone).

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