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EPA adds to lead-based paint notification standard (8325)

Lead poisoning is a serious health issue for the nation’s children, and particularly in the Northeast where a majority of the housing stock predates 1978 and may contain lead-based paint. Despite a cause and effect relationship between ingestion of lead and health effects which is well-documented, repeated predictions of an “explosion” in lead tort personal injury litigation have never materialized outside of New York City. Now, a convergence of new regulations and judicial re-examination of the common law standards for liability may open the proverbial floodgates.

In March, the Environmental Protection Agency put in place the last major piece of the regulatory framework implementing the Residential Lead-Based Paint Hazard Reduction Act of 1992 (also known as “Title X”). The new regulations define a “lead-based paint hazard,” providing a trigger for other regulatory requirements, including disclosure and abatement in target housing.

The EPA standards may also become a yardstick for common law liability. The collateral effects of the rule may turn out to be more significant than the direct application to housing with lead-based paint. In a pronounced departure from its previous focus on lead-based paint, EPA has defined a “lead-based paint hazard” to apply to paint, but also to “all residential lead-containing dusts and soils regardless of the source of the lead.”

The most immediate impact is on the existing requirement for disclosure. Since 1996 sellers and lessors of housing built before 1978 have been obligated to disclose the presence of any known lead-based paint. With the new standards known lead hazards in soil or dust will need to be disclosed even if the dwelling has no known lead-based paint.

Under the new EPA standards, lead is considered a hazard if there are greater than: 40 micrograms of lead in dust per square foot on floors; 250 micrograms of lead in dust per square foot on interior window sills and 400 parts per million of lead in bare soil in play areas or 1200 parts per million average for bare soil in the rest of the yard. The regulations are codified at 40 CFR Part 745 and became effective March 6, 2001.

The disclosure requirements in effect since 1996 are also contained in Part 745 and in HUD’s Lead Safe Housing Rule codified at 24 CFR Part 35. In addition, HUD has adopted new requirements to identify and abate lead-based paint hazards in pre-1978 housing receiving federal assistance, including federal mortgage insurance. The HUD rules took effect September 15, 2000 and require lead hazard evaluation, maintenance, and abatement depending on the type of housing assistance provided by HUD.

Abatement must be performed by EPA-certified workers trained in lead-safe work practices. In April 2001, EPA and HUD issued a joint letter clarifying the distinction between regulated abatement and rehabilitation or weatherization which may coincidentally remove lead hazards, but are not regulated activities. When the primary purpose of work is rehabilitation or weatherization, EPA and HUD do not consider such activities to be “abatement,” on the other hand, activities expressly intended to permanently eliminate lead hazards are considered abatement.

The expanding web of Federal regulations implementing Title X may soon be complemented by more stringent common law liability standards for lessors and sellers. To date personal injury actions against landlords have faced a substantial roadblock — the requirement that to establish a duty the plaintiff must show that the defendant lessor had actual or constructive notice of a dangerous lead paint condition.

Outside of New York City, which has a code provision establishing a presumption of notice, the Appellate Divisions have held that knowledge of chipping and peeling paint in an apartment does not constitute actual or constructive notice of a dangerous lead paint condition. Once beyond that hurdle plaintiffs who have established actual or constructive notice have recovered substantial verdicts. In March an Albany County jury awarded a lead-poisoned brother and sister $6.2 million. In April the Third Department affirmed an overall award of $1.8 million to a lead-poisoned 8-year old girl who suffered cognitive disorders, including attention deficit hyperactivity disorder, oppositional defiant disorder and a reading disorder, which she would not outgrow.

In April the Court of Appeals granted leave in two cases, Chapman v. Silber and Stover v. Ribilotto, to consider the standards of constructive notice for landlords. The Chapmans argue that widespread knowledge about the dangers of lead paint should suffice as constructive notice; in Stover the plaintiff alleges the Public Health Law is a sufficient basis for notice that pre-1978 dwellings may contain lead-based paint.

As the Court of Appeals considers the standard for constructive notice for the existence of lead-based paint hazards, and EPA expands the focus of its concern from paint to dust and soil and to contamination from all sources of lead, there is some encouraging news for everyone concerned. The New York State Department of Health reports that the incidence and prevalence of childhood lead poisoning are declining, decreasing 45 percent from 1996 through 1999 in counties outside of New York City; 601 cases were diagnosed in 1999 as compared to 1,111 in 1996. In New York City the decline was 44 percent (from 1,265 cases to 707).

Ronald G. Hull is a member of the law firm of Underberg & Kessler and has practiced environmental law for 13 years. He concentrates his practice on environmental law, including air and water pollution control, solid control and hazardous waste management, site remediation, Brownfields restoration, state and federal “Superfund” litigation and environmental impact reviews