Legislative Program Review and Investigations Committee

Residential Lead Abatement
Chapter III


Chapter Three
State Law and Regulation

 

The Department of Public Health is the lead agency for state lead prevention activities and oversight of enforcement actions conducted by local health department and code enforcement agencies.  Connecticut’s law requires property owners to abate defective interior and exterior surfaces that contain toxic levels of lead and are in a residential dwelling where children under the age of six reside.  This chapter provides an overview of Connecticut's laws and regulations requiring lead abatement.

History.  Although Connecticut has required reporting of elevated blood lead levels by physicians since 1971, it did not begin an aggressive lead program until 1987.  Public Act 87-304 established a Lead Poisoning Prevention Program (LPPP) in the then Department of Health Services (currently the Department of Public Health).  The act required the health commissioner to:

·       conduct educational and publicity activities on lead poisoning

prevention;

·       establish an early diagnosis and detection program that would

routinely screen young children;

·       attempt to identify dwellings and areas with toxic levels of

lead;

·       adopt regulations concerning certifying lead inspectors and

lead abatement and removal contractors; and

·       adopt regulations on removal and abatement materials.

 

The act also required that property owners remove or cover toxic lead materials if children under aged six resided in the dwelling.

Public Act 87-304 has been modified several times; each time the law became more stringent. For example, following the guidelines issued by the Centers for Disease Control two acts lowered the blood lead concentration that defines lead poisoning.  Public Act 87-304 substituted 25 mcg/dL for the previous 40 mcg/dL as the reportable level for lead poisoning.  Public Act 92-192 again lowered the reportable blood lead level threshold (from 25 mcg/dL to 10 mcg/dL – the threshold established by the CDC as the “level of concern”) and specified the local health official must conduct an epidemiological investigation of the lead source upon receiving a report of a blood lead level of 20 mcg/dL.  Most recently, legislation adopted in the early 1990s established two regional lead poisoning treatment centers and directed the DPH commissioner to establish guidelines for assessing the risk of lead poisoning, screening, and follow-up in accordance with CDC guidelines.  (For a complete legislative history, see Appendix E).

Current law and regulations.  Regulations for the lead program became effective September 1992 and, together with C.G.S. 19a-110 through 19a-111e, define Connecticut’s lead policy.  Under Connecticut law, property owners are liable for abatement of defective interior and exterior surfaces that contain toxic levels of lead and are in a residential dwelling where children under the age of six reside.  The regulations do not require a child be diagnosed with an elevated blood lead level in order for them to be applicable.  However, if a child has been identified with an elevated blood lead level, stricter requirements ensue.

Reasons for inspections.  In most cases, an epidemiological investigation by a local health department and an environmental investigation by either the LHD or code official is triggered by a report of a child’s elevated blood lead level equal to or greater than 20 mcg/dL.  It is important to note, that 20 mcg/dL is the state-mandated blood lead level, which then requires health departments or code enforcement officials to conduct an inspection.  A town’s municipal ordinance or building code may have stricter requirements with lower thresholds.  In addition, inspections can occur in rental properties as a result of a complaint by a tenant or at unit turnover.  Inspection data are kept by DPH, but the data do not include the reasons for inspections.

Abatement requirements.  Figure III-1 shows lead abatement requirements under the most common scenario (i.e., a child has a high lead level).  As depicted in the figure, if a child is tested and his or her blood lead level is under 20 mcg/dL, or the child is six years old or older, the results must be reported to the Department of Public Health, but no further action is required.  However, if the blood lead level is 20 mcg/dL or greater, and the child is under the age of six, then the law requires an epidemiological investigation and an inspection of the child’s residence.  The inspection includes testing representative samples of walls, floors, windows, exterior surfaces, and soil for lead content.  If no lead is found, no action is required by the property owner, but the local health department will try to determine other sources of lead exposure.

Under current regulations, if lead is found, the local code enforcement agency must issue an order to the property owner to correct all defective lead-based surfaces requiring abatement and all soil areas identified as a source, or potential source for elevated blood levels.  The regulations require an owner who has been issued an order to carry out all of the following:

·       abate all defective lead-based surfaces when a child under the age of six resides in a dwelling unit;

·       abate all defective exterior surfaces and all defective surfaces in common areas containing toxic levels when a child under the age of six resides in a dwelling;

·       abate all lead-based chewable surfaces, whether or not that surface is defective, and all lead-based movable parts of windows and surfaces that rub against movable parts of windows when a child under the age of six has an elevated blood lead level;

·       abate any soil around the dwelling found to be a source of lead;

·       adequately manage all intact surfaces containing toxic levels of lead, which will remain and not be abated at the time; and

·       post a notice of toxic levels of lead on each entrance to the dwelling unit or common area of the dwelling if affected, with the notice to remain until proper abatement and clearance is completed.

 



 

In addition, if the building is multi-family, the inspector must determine if any other children under the age of six live in the building, identify the units, and conduct an inspection.  If no lead is found in those units, no further action is required by the property owner.  However, if lead is found in any of those units, regardless of the blood lead level of the child, the property owner must abate all defective lead-based surfaces in the units, lead-based exterior surfaces, and common area surfaces.  The reason for this is because defective lead is a potential source of lead poisoning for the children residing in those units.  The soil is also tested for harmful levels of lead, and if found, it also must be abated.

 Relocation.  Finally, if a local director of health determines lead hazards will not be abated within a reasonable time frame and continued exposure will harm a child, the local health director is directed to use community resources to relocate the family. It is important to note, the director has the authority to permit occupancy in the unit during abatement, if such occupancy would not threaten the health and well-being of the occupants.

The regulations establish specific time frames for inspections, submission of management and abatement plans by the property owner, and abatement work to begin, once an order is issued.  The time frames differ based on whether the inspection is a result of an elevated blood lead level report (Appendix F) or for another reason (Appendix G).  The requirements include:

·       the local health department or code enforcement agency has five working days to inspect a dwelling as a result of an elevated blood lead level and 30 days to inspect other dwellings where children reside, if an elevated BLL child has been identified in a multi-unit building;

·       a property owner must submit a written lead abatement plan to the director of the local health department within 15 working days of receipt of an order.  Abatement shall begin only after the director has received and accepted a plan in compliance with the regulations;

·       a property owner must prepare a lead management plan addressing intact lead-based surfaces, which will remain and not be abated at the time.  The management plan must be prepared within 60 working days of the date that inspection results were received.  This plan, and responsibility for compliance, is transferred with ownership upon transfer of title; and

·       abatement must be initiated within 45 working days in dwellings where a child with an elevated blood lead level resides, and 90 days in dwellings where children with non-elevated blood lead levels reside.

 

The local health director has the authority to shorten any time frames stated in regulation. In addition, the regulations require the property owner to provide a summary report of the inspection  and/or abatement plan and the post-abatement inspection to tenants.

Older dwellings.  When a dwelling unit is 50 years or older and requires lead abatement, the owner must deliver a copy of the inspection report and a good quality photograph of the property to the Connecticut Historical Commission within five working days of receipt of an order.  The commission has 10 days to certify whether the property is historic in order to provide guidance as to which lead abatement techniques are appropriate for historic properties.

Proposed Regulations 

As noted above, the existing regulations were adopted in 1992 and were the first comprehensive statewide regulations to address lead prevention and abatement.  In 1996, due to perceived shortcomings, the department formed a broad-based work group to review the regulations and recommend revisions.  Several groups were represented on the work group, including: medical providers; municipal associations; housing officials; realtors; bankers; and property owners. The work group first met in October 1996.

The work group presented a report to the commissioner in April 1997 containing several significant changes to the regulations.  The recommendations were based on a work group consensus.  Although each stakeholder group had specific concerns addressed by various modifications, the proposed modifications were not entirely consistent with any one viewpoint. 

The Department of Public Health reviewed the proposed recommendations and drafted a proposal to amend the existing regulations.  The proposal was presented at a public hearing held by the department on November 16, 1997.  Following the hearing, the proposal was revised with minor changes and submitted to the Legislative Regulation Review Committee.  The committee rejected the proposal without prejudice in June 1998.  Objections to the proposed regulations had been raised by the Connecticut Association of Realtors, the Home Builders Association of Connecticut, and the Connecticut Property Owners Association.

A meeting was held with representatives of the above groups, DPH, and Representatives Arthur O’Neill and Alex Knopp in January 1999 to discuss the status of the proposed regulations.  Representative O’Neill requested the groups with concerns meet, identify one or two items of greatest concern, and report back.  (For a list of the objections, see Appendix H).  Subsequently, the program review committee voted to undertake a study of Residential Lead Abatement.  As a result, the department decided not to resubmit regulatory changes to the Legislative Regulation Review Committee until the program review committee study was completed.

The most significant changes between the existing and proposed regulations are shown in Table III-I.  A noteworthy difference between the current and proposed regulations is the establishment of a third paint classification. – “deteriorated fair” paint.  Under the current regulation, only two classifications exists, and if paint is classified as “defective,” abatement is required.  Under the proposed regulation, paint classified in “deteriorated fair” condition can be repaired rather than abated, which is a less costly alternative. 

 

Table III-1.  Comparison of Existing and Proposed Regulations.

Existing

Proposed

Two paint classifications:  intact or deteriorated

Three paint classifications: intact, deteriorated fair, and deteriorated poor

Abate defective components that contain lead-based paint

Require repair for paint in fair condition and abatement for deteriorated components in poor condition

Local health departments (LHD) initiate investigation within 5 days if child has elevated BLL

LHD conduct visual examination within 3 business days if child has an elevated BLL of 35 mcg/dL or greater

Encapsulants are incorrectly addressed within another section of regulations

Use of encapsulants appropriately addressed within encapsulation section of regulations

 

Interim controls are not addressed

Interim controls are allowed temporarily  to reduce lead-based paint hazards

 

Written notice to residents only, within 5 days prior to the start of abatement

Written notice to LDH, DPH commissioner, and  residents 5 days prior to start of abatement

 

Intact lead-based paint on chewable surfaces if child has an elevated BLL

Discretion provided to LHD to permit intact chewable surfaces to be covered in a management plan

 

If abatement does not occur within a reasonable time frame, LHD directed to use available community resources to relocate family;

LHD may permit occupancy in unit during abatement if occupancy would not threaten health and well-being of occupants

Requires residents be relocated during abatement unless local health director specifically permits occupancy, which must be stated in the abatement plan; criteria to permit occupancy must include:  abatement of limited scope, access to work area adequately restricted, and lead dust contained

Source of data:  DPH proposed regulations.

 

Under the proposed regulations, discretion is also given to directors of local health departments to permit intact chewable surfaces (such as window sills, baseboards, and trim) to be placed in a management plan, rather than abated, if a child has an elevated blood lead level equal to or greater than 20 mcg/dL.  Finally, the requirements on whether a family must be relocated during abatement are somewhat vague under current statutes (i.e., if abatement will not be completed in a reasonable time frame).  The proposed regulations require the local health director explicitly permit occupancy, but set out conditions that must be met before such permission is allowed.

Hazardous Materials Program.  Public Act 87-541 established the Hazardous Materials Program, housed at the Department of Economic and Community Development.  The program was to provide funding for eligible developers, community housing development corporations, or any other person approved by the commissioner to obtain state financial assistance for lead abatement or asbestos removal.  In actuality, the program has been operated as a consumer-oriented loan/grant program for property owners who have been issued orders by local health departments to abate lead or remove asbestos.  The administration of this program is described in greater detail in the next chapter.

Other Lead Laws 

Consumer protection.  There are several other laws that protect consumers from the hazards of lead paint.  Laws requiring licensing and certification of lead contractors and workers are aimed at ensuring proper abatement methods are used when a consumer contracts for that work to be done.   Similar to the federal law, state law requires property owners or their agents, at the time of sale, to disclose known lead hazards.

Several laws also govern tenant/landlord relations and require landlords to: comply with all applicable building and housing codes; make all repairs and do whatever is necessary to keep the premises in a fit and habitable condition; and keep all common areas clean and safe.  If landlords fail to comply with these conditions, by statute, tenants do not have to pay rent.  In addition, the law requires in certain rental housing that paint on accessible surfaces not be chipped, blistered, flaking, loose, or peeling so as to constitute a health threat.  Tenants also have responsibilities including: complying with applicable building, housing, or fire codes affecting health and safety; and keeping the premises that he or she occupies clean and safe.

Screening.  Each local or regional board of education also has the authority to require a child’s blood lead levels be tested prior to public school enrollment.  Lead screening is mandated for children entering Head Start programs.

Compliance with orders.  There are no enforcement penalties specific to Connecticut’s lead laws.  Rather, local health departments and building code officials are given authority to issue orders to enforce the Public Health Code.  If these orders are not complied with under C.G.S. §19a–206, the statute provides for health directors to institute a civil action for injunctive relief in any court.  Noncompliant property owners are also subject to a civil penalty of $250 per day.  In addition, C.G.S. §19a-220 provides for a Superior Court judge to issue a warrant requiring the noncompliant individual to carry out the order.  Another statute, C.G.S. §19a-230 provides for fines and penalties for any person who violates any legal order of a director of health, with fines of $100 or imprisonment of not more than three months or both.  Furthermore, other sections of the statute provide for civil penalties if landlords fail to maintain their properties.

Summary

Connecticut’s law focuses on ensuring housing is free of lead hazards.  Beyond reporting screening results to the Department of Public Health, no other state mandates exist to ensure children are identified and, if found lead-poisoned, treated.  The state performs primarily an oversight role with no direct responsibility for administering Connecticut’s lead law.  Rather, local health departments/districts are the entities required to carry out investigations and ensure compliance with any orders issued.

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