EPA Criticizes Vallone Lead Law by Jenny Laurie

In a welcome boost to children’s health advocates, the head of the Environmental Protection Agency’s New York region sent a letter to Mayor Rudolph Giuliani and City Council Speaker Peter Vallone criticizing the city’s 1999 lead-paint law, Local Law 38.

"I believe that Local Law 38, as currently written, falls short of the protection that children deserve and need," wrote the EPA official, Jeanne M. Fox. "The law falls short by not requiring two critical additional steps that serve to ensure that work is done properly... to require trained workers and clearance testing." Without these two requirements, Fox went on to say, the law will "result in greater lead hazards, a higher potential for a lead-poisoned child... or a child with a higher blood lead level than before the cleanup." She also pointed out that the federal government requires both the use of trained workers and clearance testing in public and federally subsidized housing.

Local Law 38 was passed last year, over the vigorous opposition of advocates of tenants, low-income housing and children’s health, when, in a complete sellout to the real-estate industry, Speaker Vallone forced the bill through the Council without any discussion of the things necessary for the prevention of lead poisoning. The EPA letter focuses on the two main issues that advocates said were absolutely necessary for the prevention of lead poisoning, and which the real-estate industry adamantly refused to accept.

"We now know, and have known for some time, that it’s the dust from lead paint that causes the poisoning," says Matthew Chachere, an attorney at Northern Manhattan Improvement Corporation and lead counsel to the New York City Coalition to End Lead Poisoning (NYCCELP). "Proper handling of the dust by EPA trained workers and a test for dust residue after the work is completed are two of the things that prevent poisoning from lead dust--things that are missing from Local Law 38, which the EPA has rightly pointed out."

In a response to the EPA letter on Housing Notebook, Met Council’s weekly call-in show on WBAI, Chachere said that there are many critical flaws in Local Law 38--not just the two selected by the EPA. "The City Council called the bill the Childhood Lead Poisoning Prevention Act, when in fact, it should be known as the Landlord Protection Act. It doesn’t protect kids from lead poisoning, it protects landlords from being sued when they act in negligent ways and poison tenants living in their buildings." He noted that the law was crafted specifically to shift the burden of vigilance for lead hazards from landlords to tenants.

Advocates and the EPA point to the fact that under the new law, when landlords get a lead-paint violation (that is, an inspector from the city Department of Housing Preser- vation and Development’s code-enforcement unit cites them for not repairing peeling or degrading paint in an apartment), they get 21 days from the violation date to repair the peeling paint without having to follow safe practices for lead-paint removal mandated by the Department of Health. The landlord must follow those safety procedures only if they have not removed the violations within 21 days. Advocates warned that this gives landlords an incentive to use unsafe cleanup practices to fix the peeling paint quickly.

Lead-poisoning experts now know that scraping and other traditional removal techniques put lead-paint dust into the air. The dust then settles on floors, furniture, and play areas, and children consume it when they touch those surfaces and then put their fingers in their mouths. Another common producer of dust is the standard friction surfaces in any apartment or home: from painted surfaces rubbing against each other when windows and doors are opened and closed.

Since last summer, the EPA has been requiring that "lead abatement" work be done by workers who have obtained a certificate from the agency via a training course. In that course, lead workers learn how to protect themselves and the occupants of the house from lead poisoning. Because Local Law 38 deliberately classifies the removing of a lead-paint violation as an "interim control method" and not lead-abatement work, landlords do not have to use EPA-trained and certified workers.

This means, according to Chachere, "your landlord can find a guy on the corner, give him $10 and a scraper, and send him into your apartment to do the work." The practice results in permanent brain damage to the children living in the house. The dust-wipe test called for by Fox is equally critical. Whatever the cleanup method used, the dust from the work must be completely and carefully removed from the apartment. Trained workers contain the work area and then clean up using a HEPA vacuum and other methods. According to Chachere, the amount of remaining dust that is dangerous is tiny, and so all dust must be removed. The area must be cleaned past the level of 100 micrograms--equal to about one grain of Sweet and Low coffee sweetener--per square foot. The only way to determine if that level has been reached is via a dust-wipe test; the tester wipes the floor of the work area with a special cloth that is then analyzed in a lab.

Meanwhile, the lawsuit against the City Council and Mayor for improperly passing Local Law 38, which was filed last year by NYCCELP (which includes Met Council) awaits a decision from State Supreme Court Justice Louis York. Advocates continued to have long advocated a broad, comprehensive package that would require safe work practices, careful city monitoring and enforcement, and financial assistance to owners of small properties doing abatement work.

In an article in the New York Times on the EPA letter, Speaker Vallone is quoted as saying he might be willing to revisit the issue. Advocates have heard nothing further from the Speaker or his staff on this.

Tenants should call their City Council member and urge that the Council work toward a comprehensive overhaul of Local Law 38; an overhaul which takes into account all of the steps that health experts say are needed to prevent childhood lead poisoning.

For more information contact: NYC Coalition to End Lead Poisoning at (718) 519-1002.