Residential Lead Abatement
Chapter II

Chapter Two
Federal Law and Regulation

As the dangers of lead hazards to children have become more widely known, federal and state laws aimed at preventing childhood lead poisoning have grown more complex since legislation was first enacted in 1971.  Multiple federal agencies are responsible for administering laws passed by Congress, providing funding to states, and developing regulations, policies, and guidelines to assist states in administering their own lead programs.  This chapter describes the government structure in place to combat lead poisoning and the role of the federal government in lead hazard prevention activities.

Government Organization 

Introduction.  Figure II-1 identifies federal, state, and local agencies responsible for lead prevention and/or abatement activities.  At both the federal and state level, the focus is concentrated on two activities: 

·            ensuring primary and secondary lead prevention activities occur to protect or treat the child (i.e., education, screening, surveillance, and case/medical management, and environment clean-up); and

·  establishing thresholds for abatement of lead hazards and ensuring proper abatement methods are used. 

Federal structure.  At the federal level, the Department of Health and Human Services, through the Centers for Disease Control, issues guidelines for screening young children, details case management activities for children who are lead poisoned, and provides funding for prevention and education programs.  As noted in Chapter One, CDC recommends state and local health departments assess state and local data on lead risks and adopt a statewide lead screening plan that recommends either universal or targeted lead screening.  In addition, CDC grants are available to states to conduct prevention activities. 

Medicaid requirements.  Under Medicaid, all children are considered at risk and must be screened for lead poisoning. The Health Care Financing Administration (HCFA) requires all Medicaid-eligible children to receive a screening blood lead test at 12 months and 24 months of age. Children between the ages of 36 months and 72 months of age must receive a screening blood lead test, if they have not been previously screened for lead poisoning.  If a state adopts a statewide plan for screening children for lead poisoning (as recommended by CDC) the plan must require lead screening for all Medicaid-eligible children.

Other federal agencies.  The Department of Housing and Urban Development is the lead agency responsible for federal efforts to eliminate lead-based paint hazards from housing in the United States.  Grants are available from HUD to state and local governments to provide financial assistance to private property owners to abate lead hazards.  In addition, a recently adopted HUD regulation, described below, requires widespread lead hazard reduction occur in federally owned and assisted housing.  The Environmental Protection Agency coordinates and uses its regulatory authority to reduce lead in the environment, and the Department of Labor protects workers from lead dangers.  The EPA offers grants to states to operate their lead licensing and certification programs for lead contractors and workers.

State structure.  At the state level, the Department of Public Health operates the Childhood Lead Poisoning Prevention Program, which oversees prevention activities, and ensures local health departments (LHDs) enforce Connecticut’s lead laws related to lead inspections and abatement.  The department also issues screening and treatment guidelines, funds two Regional Lead Treatment Centers (one at Saint Francis Hospital and another at Yale), and promotes educational activities.  In addition, the Department of Economic and Community Development administers federal and state grant/loan programs that can be used by private property owners to pay for lead abatement expenses. 

Local structure.  Finally, at the local level, 108 health departments/districts are responsible for conducting epidemiological investigations once a child is identified with a BLL of 20 mcg/dL or greater.  In addition, health departments/districts or local code enforcement agencies conduct environmental investigations, issue abatement orders to property owners if lead hazards are present, and ensure compliance with the order through re-inspection or referral to the courts.  Educational activities focusing on the hazards of lead also occur at the local level.

Federal Law

Initial federal legislation.  Concern about the hazards of lead prompted federal action in 1971 when Congress enacted the Lead-Based Paint Poisoning Prevention Act (LPPPA).  The act provided a definition of lead-based paint (any paint containing more than 1 percent lead by weight) and also initiated programs to screen children and abate the sources of lead in residential housing by providing funds to states to establish programs. Amendments to the act gave HUD significant responsibility for lead-based paint hazards (1973) and lowered the standard for allowable lead in paint from 1 percent to .06 percent (1977), the current standard. Specifically, the LPPPA directed the Department of Health and Human Services to:

·       prohibit the use of lead-based paint in residential structures constructed or rehabilitated by the federal government or with any form of federal assistance;
·       establish a national program to encourage and assist states and cities to conduct mass screenings to identify children with elevated blood lead levels and make sure they receive medical treatment;
·       investigate children’s residences for sources of lead; and
·       order abatement of lead from the residences if necessary. 

The CDC administered appropriations under the act, which provided for the establishment of screening programs until 1981, when funding was incorporated into the Maternal and Child Health Services Block Grant (MCH).  Currently, states that receive MCH grants may, but are not required to, use these funds for childhood lead poisoning prevention.

1988 federal legislation.  The Lead Contamination Control Act (LCCA) was enacted in 1988.  The act authorized CDC to provide grants to states and towns to administer a program for preventing childhood lead poisoning.  As part of the program, funding is available for screening, referral of cases of elevated blood lead levels for treatment and environmental case management, and for education to high-risk communities.  Major provisions of the act regulate drinking water to ensure it is lead safe.

The Residential Lead-Based Paint Hazard Reduction Act.  The Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X of the Housing and Community Development Act) initiated major changes in the federal lead law.  Prior federal policy encouraged full abatement of lead-based paint, regardless of its condition or location, in federally owned or subsidized housing.  With the passage of Title X, the policy focus shifted from full abatement to property maintenance and provided for resources to be focused only on lead-based paint hazards.  Under Title X, intact lead-based paint on most surfaces is not considered a hazard until it has deteriorated, thus requiring it be monitored and maintained.  Title X emphasizes identification and control of lead hazards in federally assisted or owned housing and notification to occupants of the existence of known lead hazards in all housing. 

Agencies responsible for implementation.  The act requires several federal agencies to establish a coordinated effort to reduce lead hazards. Three main agencies are responsible for implementation of Title X -- the Department of Housing and Urban Development; the Environmental Protection Agency; and the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor.  In general, the act:

·       imposes detailed requirements and deadlines for lead hazard reduction on federally owned, insured, and assisted housing;
·       promotes lead hazard reduction in privately owned housing through the provision of state and local grants;
·       requires training and certification or licensure of abatement contractors, risk assessors, and lead inspectors;
·       establishes a national task force to examine issues of lead abatement;
·       requires disclosure of known lead hazards by private property owners;
·       directs HUD to develop technical guidelines for hazard evaluation and control practices and to overhaul its regulations related to lead-based paint;
·       directs EPA to set standards for lead contaminated dust and soil hazards and for states to accredit laboratories; and
·       provides for public outreach and education. 

Defining lead hazards.  Title X defines “lead-based paint” as paint on surfaces with a lead concentration of 1.0 milligram per square centimeter (mg/cm2) or 0.5 percent by weight.  The .06 percent threshold for the actual lead content in new paint, established in 1977, was not changed. 

The act focuses resources on situations believed to present lead exposure hazards, not just on any lead paint, and defines the term “lead-based paint hazard” as any condition that causes exposure to lead sufficient to cause adverse human health effects.  Six situations are cited:

·       deteriorated LBP – any interior or exterior LBP that is peeling, chipping, chalking, or cracking or  located on any surface or fixture that is damaged or deteriorated;
·       LBP on any friction surface – an interior or exterior surface subject to abrasion or friction, such as painted floors and friction surfaces on windows;
·       LBP on any accessible surfaces – an interior or exterior surface painted with LBP that is accessible for a young child to mouth or chew;
·       LBP on any impact surface – an interior or exterior surface subject to damage by repeated impacts, such as parts of door frames;
·       lead-contaminated dust – surface dust in residential dwellings that contains an area or mass concentration of lead in excess of the standard to be established by EPA; and
·       lead-contaminated soil – bare soil on residential property that contains lead in excess of the standard to be established by EPA. 

Title X requirements by type of housing.  Title X addresses three types of housing – private property, public, and federally assisted or owned.  The act’s requirements differ depending on the type of housing.  For example, in federally assisted or owned housing, complete evaluations of lead-based paint hazards must be conducted and corrected by specific dates.  A more detailed description of what the act requires, by type of housing, is provided below.

Private property.  Although interim controls and abatement are required in federally owned and assisted properties, it is important to remember there are no similar federal mandates for privately owned property.  However, the act does impact private property owners in three ways:

·       Lead hazard disclosure for selling or leasing pre-1978 housing.  Private property owners of pre-1978 properties and their agents seeking to sell or lease the property must provide prospective buyers and tenants an educational pamphlet (developed by EPA, HUD, and the Consumer Product Safety Commission) about lead hazards to children and disclose known information about the presence of lead-based paint and lead hazards in the particular property.  In addition, buyers have up to 10 days to hire a lead inspector or a risk assessor to inspect the property at their own expense.  Joint HUD and EPA regulations implementing these provisions became effective in December 1996.  Civil penalties may be imposed on owners not complying.

·       Renovation activities.  As of June 1, 1999, the EPA requires renovators, working for compensation, to distribute a pamphlet to owners and occupants of most housing built prior to 1978 before beginning renovation activities.  Renovation activities that disrupt more than two square feet of paint are covered by this rule.  The pamphlet discusses ways in which individuals can protect themselves and their families from lead-based paint hazards.

·       Grant funds to abate lead hazards in private property.  Title X established a grant program that authorized HUD to distribute funds to states and municipalities to reduce lead paint hazards in privately owned housing built before 1978 and occupied by low-income families.  Connecticut received a $6 million grant award in 1995, and submitted a $4 million application for another HUD grant in May 1999. However, Connecticut was not one of the selected grantees when HUD announced the awards in November 1999.

Public housing.  For public housing, Title X leaves intact the 1988 statute’s requirements for inspections of all developments by December 1994, and abatement of all lead-based paint (not just lead-based paint hazards) in the course of modernization projects. 

Federally assisted and associated housing.  Many of the key provisions of Title X are designed to substantially expand the scope of lead-hazard evaluation and reduction activities in federally owned and assisted housing.  As of January 1995, the act requires, within available appropriation, lead-hazard reduction (interim controls or abatement) in federally assisted or owned housing.  Interim controls temporarily reduce exposure to lead hazards and include such measures as temporary containment, repairs, repainting, and specialized cleaning.  Long-term interventions include abatement measures such as paint removal, enclosure, encapsulation, or component replacement (e.g., windows).  This is to be accomplished by conducting inspections to identify the presence of lead paint hazards, using the six criteria cited above.

The act allows LBP-hazard evaluation and reduction activities to be eligible for funding under Community Development Block Grants, HOME grants, all HOPE programs, rural housing programs, FHA Home Improvement and Rehabilitation Loans, and makes them eligible rehabilitation activity under FHA Insurance for Multifamily Housing.  Abatement requirements also apply to federal agencies that own or control properties that may eventually be transferred to residential property.

Implementation of these requirements has been problematic according to DPH and DECD staff, and HUD has not met the time frames established under the act, largely due to lack of funding.  However, the recently approved HUD regulation re-establishes time frames and specifically defines the lead hazard reduction activities that must occur in federally owned and assisted housing, and public housing.

Housing and Urban Development lead-based paint regulation.   Although Title X was passed in 1992, it has taken seven years for HUD to publish a final regulation, which completely overhauls lead-safety requirements covering federal housing assistance and community development programs.  The new regulation -- “Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance” – was adopted in September 1999.  It consolidates all of the department’s lead-based paint regulations in one part of the Code of Federal Regulations and becomes effective in September 2000. 

The purpose of the HUD regulation is to protect young children from lead-based paint hazards in housing financially assisted by the federal government or being sold by the government.   HUD cites the latest scientific research, as well as practical experience in its grant programs and CDC guidelines, along with recommendations of a national task force, in establishing the final rule.

The regulation will be a major force driving lead hazard reduction in federally owned and assisted housing over the next several years.  It strengthens the federal government’s commitment to primary prevention -- reducing children’s exposure to lead hazards before they are poisoned -- by requiring lead hazards to be addressed in housing supported by U.S. government dollars.  Accomplishment of the requirements in the rule will have a dramatic impact on lowering children’s risk of lead poisoning, since most of the housing affected by the rule is targeted to low- and moderate-income renters and usually located in urban areas.  Studies have shown low-income children, those who receive public assistance, and those who live in urban areas are at high risk for lead poisoning.

Estimated benefits and costs.  As with all federal regulations, HUD was required to estimate the impact in terms of costs and benefits.  The regulation will protect more than two million children from lead exposure during its first five years.  In addition, HUD estimates the value of total benefits in the first five years at $2.65 billion with a cost of only $564 million.  Estimated benefits are derived from assumptions about increased lifetime earnings, savings from medical care, and special education costs.  It is estimated about 2.8 million U.S. housing units will be affected by the regulation during its first five years.  The average cost to implement the regulation, according to HUD, is estimated at approximately $200 per unit ($564 million divided by 2.8 million units).

Types of housing affected.  The regulation applies only to housing built before 1978, the year lead-based paint was banned by the U.S. government, and covers all federal HUD housing and community development programs from Section 8 to public housing.  Table II-1 identifies the types of housing covered and excluded under the regulation.

Regulatory requirements.  HUD identifies four basic principles embodied by the new regulation.  First, regardless of the lead hazard reduction methods used, clearance is required. (Clearance includes visual inspection and scientific testing of settled dust for lead after work is performed).  Second, ongoing lead-based paint maintenance practices are obligatory in rental housing whenever HUD has a continuing relationship with the property.  Third, to ensure the controls are still intact and effective over time, reevaluation is required whenever a risk assessment and interim controls are required and there is a continuing HUD subsidy or ownership of rental housing.  Fourth, whenever a child is identified with a blood lead level that calls for an environmental assessment and intervention, special procedures are required in programs with a continuing subsidy or HUD ownership of rental housing. 

 At a minimum, the regulation mandates:

·       identification and correction of deteriorated lead-based paint before children are lead-poisoned;
·       use of safe work practices if lead-based paint is disturbed during rehabilitation projects (only when the area of paint being disturbed is greater than 20 square feet on exterior surfaces; two square feet in an interior room; or 10 percent of a building component with a small surface area); and
·       performance of clearance following paint stabilization to ensure clean up of dust, paint chips, and other debris is satisfactory. 

Lead reduction and abatement strategies.  The scope of the lead hazard reduction activities, their estimated cost of implementation, and their lasting effectiveness fall along a continuum under the rule. Four factors determine the extent of the requirements:

·       whether the housing is being disposed of or assisted by the federal government;
·       the type and amount of financial assistance provided;
·       the age of the structure; and
·       whether the dwelling is rental or owner-occupied.  

Housing receiving high amounts of federal financial assistance has the most stringent requirements under the rule. 

Specifically, there are seven evaluation and hazard reduction strategies for HUD housing programs.  All except the first two require the use of certified lead-based paint professionals for risk assessments, inspections, and abatement.  In addition, clearance examinations, which must be performed for all methods listed below, must be done by a person who did not perform the hazard control work and who is certified to perform lead-based paint inspections, risk assessments or clearance examinations in the state.  The strategies, in order from least to most stringent, are: 

·       safe work practices during rehabilitation;
·       ongoing lead-based paint maintenance practices to assure paint is maintained so it remains intact and safe work practices are used (this is basically Essential Maintenance Practices, as recommended by the national task force and by the program review committee in Chapter Five);
·       visual assessment and paint stabilization (which includes correcting the underlying cause of paint deterioration and applying a new protective coating of paint.);
·       assessment of risk for lead-based paint and if found, interim controls;
·       Lead-based paint inspection and risk assessment, and interim controls;
·       Risk assessment and abatement of lead-based paint hazards; and
·       Lead-based paint inspection and abatement of all lead-based paint. 

The specific requirements by housing type are provided in Appendix C, and a glossary of terms used in the rule is provided in Appendix D.

Relocation of residents.  By regulation, occupants do not always have to be relocated out of their dwelling unit during lead hazard control work. Many jobs may be performed without relocation if the work area is contained so dust generated by the work does not migrate to the rest of the living area during the work, cleanup, and clearance. However, the regulation states occupants should never be permitted to enter a room or hallway while work is underway and it is generally safer to relocate occupants until the work has been completed.

Elevated blood lead level.  There are special regulatory protections for a lead-poisoned child.  A risk assessment of the child’s dwelling must be completed within 15 days after the owner is notified of the presence of a lead-poisoned child by a health department.  If lead-based paint hazards are identified, corrective action must be taken within 30 days of the assessment.  The regulation does not define at what blood lead level a child is lead-poisoned, but instead identifies an “environmental intervention blood lead level.”  The environmental intervention level is defined as when a child less than six years of age has a blood lead level of 20 mcg/dL or greater for a single test, or 15-19 mcg/dL in two tests taken at least three months apart.

Environmental Protection Agency.  Title X also requires the U.S. Environmental Protection Agency to take several actions.  The agency has developed standards for states to follow to receive EPA-approval of state programs for certification of firms and individuals performing lead-based paint activities and associated work practices.  The EPA has established a program for the accreditation of laboratories for analysis of lead in paint, dust, and soil. 

The EPA is in the process of finalizing proposed standards (as required under Title X) that identify the conditions and/or levels of lead in paint, dust, and soil that present risks to young children.  The rule will establish residential, lead-dust cleanup levels (i.e., what the acceptable thresholds are for lead dust after abatement) and revises dust and soil sampling requirements. 

HUD has adopted the proposed standards in its regulation and will mirror the levels established by the EPA once the EPA rule is finalized.  In addition, HUD intends to link a state and local government’s eligibility for the HUD Lead-Based Paint Abatement Grant Program for private property owners to that state’s adoption of the EPA’s health-based standards (or one at least as protective) once they are finalized. 

Task force recommendations.  Title X also established a national task force to examine several issues including legal liability, insurance, and financing of lead abatement activities.  Task force membership had broad representation and included: property owners; tenants; attorneys; lenders; insurers; contractors; and experts and advocates for lead poisoning prevention.  The task force’s final report Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing was issued in July 1995 and contained numerous recommendations, which are discussed below.

Essential maintenance practices.  The recommendations called for the establishment of a set of "benchmark standards," which identify the steps owners of rental property need to take to control lead hazards.  For well-maintained properties, which are considered low risk, a set of "Essential Maintenance Practices" (EMPs) applies. EMPs are aimed at keeping paint intact and thus preventing deterioration of leaded paint.  EMPs are considered low-cost.  They rely on property maintenance staff having a one-day basic training session in lead safety, which emphasizes the need to control, contain, and clean up lead dust generated in repair, repainting, and remodeling projects. In July 1997, HUD and EPA issued a one-day training course for rental property maintenance workers.

For "higher priority" properties, the task force called for more aggressive measures, including giving property owners the option of:

·       hiring a certified risk assessor to determine if the paint contains hazardous lead levels and whether soil is contaminated, or
·       performing a prescribed set of "Standard Treatments," primarily when the rental unit turns over.  These include: repairing deteriorating paint; providing smooth, cleanable surfaces to avoid trapping lead dust; covering or limiting access to bare soil; specialized cleaning; and follow-up testing of floors and window sills to ensure successful removal of lead-contaminated dust. 

The task force also recommended that states pass legislation to provide incentives for rental property owners to implement effective hazard controls, including limiting legal liability for those who can independently document compliance with maintenance practices.  The task force’s recommendations were drafted into model legislation by the National Conference of State Legislatures (NCSL) in August 1996. 

While no state has fully adopted the model law, several state and local governments have implemented parts of it.  For example, since Vermont's lead law was passed in 1996, more than 6,500 individuals, primarily rental property owners and managers, have received Essential Maintenance Practices training. 

Summary

Multiple layers of government are involved in the prevention of childhood lead poisoning.  The organizational structure in place at the federal level, responsible for administering lead laws passed by Congress and developing regulations and guidelines, is fragmented and involves several different agencies, each with a distinct area of expertise.  Agencies are split into two discrete groups:  CDC and HCFA are concerned with lead prevention and treatment of lead-poisoned children, while HUD and EPA efforts are targeted at ensuring lead hazards in the nation’s housing are addressed.  Title X attempted to coordinate the efforts of the various agencies with limited success, since many of the mandates are directed only at certain properties under the jurisdiction of federal control.

Much of the funding to deal with lead prevention and abatement comes from a variety of federal government agencies, each with their own concerns and requirements.  The funding is funneled to the states, and often down to the local level.

Title X, in conjunction with the new HUD regulation, clearly makes the federal government the leader in preventing childhood lead poisoning by linking the reduction and/or elimination of lead hazards to the receipt of federal financial assistance for housing programs.  The focus of the regulation is on requiring identification and correction of lead hazards before children become lead poisoned.  In addition, federal policy targets housing programs that assist low- to moderate-income families whose children are at greatest risk for lead poisoning.

The regulation will have a major impact on the private rental housing market, since a rental property owner will likely comply with the requirements for all units, rather than only target those subsidized by federal dollars (such as in tenant-based Section 8 housing).  The recommendations made in this report will further enhance federal policy by applying similar safeguards to areas not covered by federal law.

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