New York City has implemented an aggressive new program to prevent childhood lead exposure in New York City, raising standards for public housing while lowering the threshold for the presence of lead in paint and dust. These changes may lead to increased issuances of lead violations, reports of elevated blood-lead levels in children, and lawsuits filed by parents and guardians; however, none of these automatically indicate fault nor impute liability on the property owner.
“LeadFree NYC” Program Seeks to Prevent Childhood Lead Exposure
In the wake of New York City’s Department of Health (DOH) 2018 implementation of revised testing standards requiring an inspection of apartments where children’s blood-lead levels (“BLL”) were found to be 5 micrograms per deciliter and above (a significant decrease from the prior 10-microgram threshold), the City has seen a sharp increase in the number of inspections performed by the New York City Housing Authority (NYCHA).
A new plan to prevent childhood lead exposure has now been implemented by Mayor Bill de Blasio and Department of Sanitation Commissioner Kathryn Garcia, whom the Mayor recently appointed as the interim chair of NYCHA. This program, called LeadFreeNYC, was created after a thorough review of all agencies’ lead prevention policies; and seeks to completely eliminate childhood lead exposure by 2029 by establishing comprehensive and aggressive protocols for the inspection, testing, and abatement of homes with lead hazards, and for the treatment of children who have tested for elevated BLLs. The goals of the LeadFreeNYC program include:
• Reduce to the lowest level of any major U.S. city the amount of lead in paint and dust that triggers remediation and abatement
• Require annual inspections of apartments in one- and two-family homes previously excluded from the City’s lead paint regime
• Expand the use of stop work orders from the Department of Buildings when the DOH finds lead exposure risks during construction
• Ensure children are immediately provided with access to BLL testing in any home where housing inspectors identify a lead paint hazard
• Provide a dedicated nurse to any child with elevated BLLs to coordinate care
• Launch advertisement campaigns promoting testing for children in communities with low testing rates, awareness about free water testing kits provided by the City, and awareness of harmful consumer products containing lead
• Test all 135,000 NYCHA apartments where lead has not been ruled out, and remove all lead hazards
• Proactively test for and remove lead hazards from all family shelter units
• Establish a new Lead-Free Designation for homes where all lead has been eliminated
• Publish a Lead Products Index of consumer goods such as spices and ceramics that contain lead, consolidating rules to protect retailers and consumers
• Publish a map of all privately-owned lead service lines that carry water into private homes and expedite their replacement for low-income homeowners
• Remove lead exposure risks from soil by providing clean topsoil to community gardens and surveying all NYCHA playgrounds, covering exposed soil when needed
Program Adjusts Definition of Lead Paint and Lead Dust Standards
In addition to many other ambitious initiatives, such as testing 135,000 NYCHA units within the next two years and making inspection results publically available, the program proposes adjusting the definitions of lead paint standards and lead dust standards. Lead paint is currently defined as having lead content of 1 mcg/sq. cm. The program proposes cutting this threshold in half to 0.5 mcg/sq. cm. Similarly, lead dust is presently defined as 40 mcg/sq. ft. and 250 mcg/sq. ft. for floors and windows, respectively. The program proposes lowering the threshold to 10 mcg/sq. ft. for floors, and to 100 mcg/sq. ft. for windows. Such proposals, if adopted, would substantially broaden the definition of what qualifies as lead hazards, thus increasing the number of lead violations issued by DOH, which in turn would lead to an increase in remediation and abatement orders.
For every child that tests positive for elevated BLLs (i.e. 5 mcg/dL and above), DOH will assign a care coordination nurse to monitor the child’s BLL and coordinate their medical care. These nurses will also refer children to early intervention programs, nutritional care, and other care on an as-needed basis. DOH will also implement a system in which the child’s BLL history will be readily available to doctors and parents, similar to the quick access for vaccinations. Once a child test for elevated BLLs, an investigation is conducted which includes environmental testing and inspection of the home, interviews of the family and child, and, when necessary, abatement of the home. Expanded marketing programs will raise awareness of lead hazards and the importance of screening for lead exposure in young children.
Program May Trigger Increase in Lead Violations, Lawsuits
While the LeadFreeNYC initiative is designed to reduce lead hazards in New York City and potential harmful exposure to children, the trade-off may be an increase in the number of lawsuits filed by parents and guardians on behalf of children with elevated BLLs. The reduction of the threshold for elevated BLLs that triggers DOH testing of a home (from 10 mcg/dL to 5 mcg/dL), coupled with the proposed revisions to the definitions of lead paint and lead dust, will have a direct correlation to an increase in the number of lead violations issued by the DOH. That being said, the issuance of a lead violation and a determination that a child has elevated BLLs is not indicative of fault and will not automatically impute liability on the property owner. Parents and guardians that file suit will still need to prove there is a correlation between such low BLLs and any claimed injuries of the child, which often include developmental delays, learning disabilities and issues with cognitive functioning.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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