The Lead Paint Hazard

To test or not to test: that is the question.
Whether 'tis wiser in the mind to suffer
The risks and liability of outrageous attorneys.
Or to take care against a sea of lawsuits
And by opposing, end them?


On September 6, 1996, selling or renting apartments and buildings got complicated.

On that day, federal regulations for Title X (pronounced Title Ten) of the Lead-Based Paint Hazard Reduction Act of 1992, P.L. 102-550, took effect.

Title X requires owners and landlords of most pre-1978 housing to inform prospective buyers and tenants, as well as tenants who intend to renovate or paint their apartments, about any known lead paint in their dwellings. In addition, prospective buyer s and tenants must sign for and receive a lead hazard warning pamphlet.

Owners and landlords who do not comply with Title X are liable for penalties and fines in amounts not exceeding $10,000.00 for each infraction plus one year in jail.

In addition, sales contracts are voidable within ten days of the contract date if purchasers inspect for and find lead-based paint hazards.

Real estate brokers involved with the sale or lease of residential property, moreover, are also responsible under Title X to insure that owners and landlords comply with the regulations. Brokers are also specifically liable for treble damages, fines a nd incarceration.

What the Law Requires

Title X requires disclosure of all known lead hazards. It does not require testing to ascertain whether lead paint exists. But it does require disclosure of all previous testing. All Department of Health surveys, for example, must be disclosed in sw orn statements on special forms. The paperwork plainly is onerous. Health Department violations, however, negatively affect potential buyers and tenants as well as financial institutions.

New York State law, to make matters worse, is far stricter than federal law. The New York Court of Appeals ruled in May, 1995, that owners have an affirmative and continuing duty to inspect for lead paint. In short, New York State requires building o wners to inspect, whereas federal law does not. Title X, conversely, requires disclosure only. Hence, building owners in New York are caught between two laws. Doing nothing violates New York State law Surveying and remediating lead hazards in New York is thus a legal mandate. Moreover, survey results must be disclosed to prospective tenants and buyers. Such disclosure may impede sales, or worse, provoke lawsuits. Joseph Heller called it Catch 22.

What Can Happen If You Ignore Title X?

Noncompliance with Title X can result in fines and penalties of up to $10,000.00 for each infraction plus a year in jail. And expensive litigation inevitably follows. Parents of children diagnosed with lead poisoning sue owners, landlords and brokers for compensatory and treble damages. Painters contaminate personal property with lead dust; buyers and tenants sue owners for treble the damages to contents. A new buyer sues a broker for $300,000.00 which represents triple the cost of removing 5,000 s quare feet of lead paint from a new apartment. Tenant associations survey public spaces for lead paint. Such surveys then constitute known information disclosable by law to every new tenant and potential purchaser. The bank then discovers the surveys w hich may or may not be valid, and refuses refinancing.

What Happens When You Are Sued?

The fact that schools, playgrounds, nurseries and other facilities for children contain high amounts of lead paint ensures that children will ingest lead and that building owners and brokers will be sued, eventually. Despite the fact that children are not typically poisoned in apartments, the Department of Health files approximately 2,500 Orders to Abate anyway each year against residences. Current enforcement of lead paint law exclusively targets residential building owners and managers because the government assumes, usually erroneously, that paint in residential buildings, where lead-poisoned children reside contains lead. DOH inspectors stamp indelible red ink lead warnings on building surfaces. But these surfaces frequently contain no accessib le lead. Advertisements placed in buses and subways by the personal injury bar, moreover, invite tenants to sue unwitting landlords for lead paint poisoning.

There are currently more than a thousand lead paint lawsuits pending against New York City and thousands more suits against private building owners and managers. After Title X disclosure rules take effect, most owners will risk lawsuits. Title X treb le damages create, by themselves, enormous incentives to sue. Catch 22 all over again. Owners who produce Title X disclosure forms, wherein they swear they know nothing about lead paint, admit thereby that they have violated New York State law. Catch 2 2.

Which Tests Should You Trust?

To make matters worse, not all lead testing methods are created equal. Federal and State law recognize two different testing systems: XRF (x-ray) machine analysis and laboratory paint chip analysis. The XRF machine measures all lead present in a one-square-centimeter area by flooding it with gamma rays and reading whatever lead exists within that boundary. This method finds and reports far more lead than paint chip analysis, because the machine also detects lead in plaster, pipes, solder - even nails.

But only lead in paint is regulated. Chip analysis collects only surface paint layers.. A laboratory first weighs the chip samples; then it computes a percentage of lead in the collective layers using a spectrophotometer. The legal definition of lea d paint is 0.5% lead by weight using paint chip analysis; one milligram per square centimeter under federal law and 0.7 milligram per square centimeter under New York City law using the XRF machine. Hence XRF machine results, in consequence, are factuall y and legally excessive.

In older buildings, a window sill typically contains a lead paint primer coat and 25 additional layers of non-lead paint. Paint chip analysis, which measures the weight of all the layers together, may read 0.4% lead by weight - a level below the defin ition of lead paint. The same window sill, however, if measured with an XRF machine may read 1.4 milligrams per square centimeter - a level above both the NYC and the federal definition of lead paint. Both reports are correct. The XRF machine reports a surface as lead-containing without regard for the many covering layers of non-lead paint, whereas paint chip analysis reads a surface by measuring the average of all 25 layers of paint.

Consequently, a positive XRF measurement often is not positive by paint chip laboratory analysis. Chip analysis, in addition, is more accurate because it measures lead in the paint -- and only in the paint. The XRF machine often detects lead in plast er, but plaster is not legally defined as hazardous in residential facilities. Similarly, wood moldings often absorb lead from paint, but unpainted wood is not covered by the definition of hazardous lead paint.

Incorrect - that is, legally excessive - XRF surveys expose owners unnecessarily to lawsuits and often require unnecessary and expensive lead paint removal. Even worse, Title X requires owners, managers and brokers to disclose XRF surveys before every new lease, sale or apartment renovation or painting. Obviously, inspection by laboratory paint chip analysis saves owners from unnecessary expense and possibly ruinous litigation.

Hear Now The Good News

In 1960, New York City banned the use of lead paint in residential housing. Today, after 35 years of repainting, whatever lead paint exists lies beneath many layers of non-leaded paint. In addition, lead paint was an expensive building material from 1900 to 1930 and was not often used in speculative housing. As a consequence, most New York City apartments contain little or no accessible lead paint. Moreover, apartments are rarely the only - or prime - cause of child lead poisoning.

Building owners cited for lead paint hazards must show that the citations, based invariably on the XRF machine, are excessive hence incorrect; that no toxic hazard exists; and that reasonable care was taken to prevent hazards. Alternatively, tenants s uing building owners must show that the owners failed to inspect their properties for lead-based paint; failed to maintain existing paint in good condition; and failed to comply with apposite laws. Remember, any consultant you hire who uses the XRF machi ne may cause your building to be placed unnecessarily and with deleterious future economic and legal consequences on the HPD lead registry. Owners who use paint chip analysis, however, stand a good chance of proving lead-free conditions and thereby avoid ing Title X sanction in the future.

How To Take Apartments Out of the System

Title X exempts studio and efficiency apartments as well as lofts, dormitories, housing used exclusively for the disabled or elderly and housing rented for fewer than 100 days. Consequently, many buildings will contain some Title X apartments and some exempt apartments. Building owners can add entire buildings or apartments to the exempt roster by inspecting them according to strict survey requirements using a federally certified risk assessor who produces a certified report on the specific building or unit.

Inasmuch as New York State has no certification for lead, Title X allows the use of inspectors and risk assessors who are certified by EPA-approved certification programs in other states. Molloy Corporation is licensed in Maryland.

What Owners Are Doing Now

Absent clear precedent, building owners and managers have devised very different strategies for resolving lead paint issues. A very few owners are aggressively surveying all buildings and apartments for lead paint and removing lead wherever found. Th eir objective is to remove all lead paint and to certify the apartment as lead free. Plainly, this option is costly. In addition, it is frequently impossible to find and remove all existing lead paint - lead paint behind cabinets or closet shelving, for example.

Still other owners have chosen to cover all surfaces with liquid encapsulants, Without doing any surveying whatever, these owners intend eventually to survey selectively and to remove buildings and apartments from the system after encapsulants and pai nt build-up ensure that no lead paint exists or that what lead paint remains resists detection by paint chip analysis.

Of course, some building owners and managers have decided neither to survey nor to encapsulate. Instead, they rely on maintaining all surfaces intact and developing a management plan that includes regular inspections and dust wipe tests to certify the ir units as "lead safe." HEPA equipment and emergency response plans to abate deteriorated surfaces are necessary adjuncts to management programs.

Unfortunately, most building owners have decided to ignore Title X - a decision that will ensure lawsuits and probably losing the property.

How to Manage Lead

We have learned much about managing hazardous substances from the asbestos debacle. No matter how carefully asbestos removal is regulated, it results almost invariably in widespread low-level contamination. In fact, extensive asbestos removal project s failed to eradicate asbestos completely. But current lead law still requires unnecessary, expensive and potentially hazardous abatements in housing whereas it irresponsibly ignores lead paint hazards in public spaces. The government dithers while it f orces hazardous removals.

Rather than removal, Molloy recommends the use of liquid encapsulants in conjunction with periodic inspection and continuing management. The US EPA Operations and Management system is a reasonable model that is likely to become the future lead paint m anagement standard. Building owners begin by encapsulating apartments or houses when vacant, repair or remove all lead hazards, and commission a certified inspection which includes post-abatement clearance monitoring to certify the inspection. This syst em should be applied to renovation and routine repainting in buildings constructed before 1978.

The Future in Lead

Lead in 1996 recalls asbestos in 1986. Government regulation of lead, like government asbestos regulation, imposes unnecessary public and private costs. Unnecessary costly and hazardous toxic removals proceed apace.

Government regulations governing lead paint in buildings set reasonable standards for managing a ubiquitous hazard. But these standards must apply to all public, as well as private, facilities. Surveys and management in place, not removal, are the sa fest strategy.

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