Mass. law is outdated and misguided

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According to a highly qualified individual, Massachusetts has taken a stringent, high-cost approach to lead paint abatement, with the result that many landlords balk and refuse to comply with the law, likely leading to more poisoning.

Meanwhile, Rhode Island has taken a milder, education-oriented approach, resulting in more compliance with that state’s “lead hazard mitigation” law and – here’s the bottom line – this compliance has lead to a dramatic drop in Rhode Island’s childhood poisoning.

In three short years after adopting its lead hazard mitigation law, Rhode Island cut its poisoning rate to a quarter of its previous high. In 2005, when the Rhode Island law was adopted, about 1,200 children a year were getting poisoned (at 10 mcg/dL of blood or more). By 2008, only about 250 Rhode Island children were getting poisoned.

Went too far

This surprising perspective came from Kent Ackley, a former Massachusetts landlord who is now a Rhode Island landlord with unique expertise in lead paint issues. Besides being a landlord, Ackley is a lead inspector and a trainer for the new EPA lead paint renovation rule that goes into effect next month.
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“It strikes me,” Ackley says, “that Massachusetts suffers from being among the first states to regulate lead-based paint in the 1970s and 80s. They probably went too far. They started out too focused on health issues and not focused on economic incentive issues. Their solution actually does provide a very low risk of lead exposure if a property has been deleaded. But it’s too expensive, so landlords don’t do it and people get poisoned. Landlords try cleaning [lead paint] up on the sly and they make a mess.”

Ackley suggests that Massachusetts even went too far on the health side, requiring abatement procedures that are of no benefit – specifically, scraping intact lead paint on the theory that children chew on woodwork. Under Massachusetts law, lead paint on the woodwork of doors, door frames, windows and around windows must be completely scraped off to a height of five feet or the windows must be replaced.

This scraping of intact paint is very costly. Moreover, most of these surfaces are out of reach or very hard for a child to chew on. The most likely surface to present itself to small children is the window sill.

Ackley even dismisses window sills as a danger. He was once in a room full of inspectors.

“There must have been hundreds of person-years of inspector experience” in that room, he said, referring to the combined experience of all the inspectors. “Only one inspector said he had ever seen teeth marks on a window sill and he doesn’t know if they were human or dog’s teeth marks.”

All about dust

Over the years, the wood-chewing theory has been replaced with the lead-dust theory.

“Now it’s all about the dust,” says Ackley. “When buildings get old, the paint turns into dust. It’s a legacy that happens day in and day out. The paint starts to fall apart without any one touching it because it’s 100 years old.”

So the question is: Do you remove all the lead paint? Do you remove it from the riskiest places only? Or do you mitigate it – make the paint intact? Massachusetts chose to remove it from the suposedly riskiest places. Rhode Island chose to mitigate lead paint.

Took their time

Rhode Island did not have a lead hazard law until 2004. Up until that time, the state had high childhood poisoning rates, according to Ackley, and was “doing triage,” treating children after they were poisoned. But the state had the advantage that it could look at the experience of other states such as Massachusetts.

“Rhode Island figured that if it was more reasonable,” says Ackley, “people would comply in the long run. Compliance [with the law] in Rhode Island is less costly, so there’s greater compliance. Most people are not in 100% compliance, but Rhode Island property owners are at least doing 90% of the law. They have mitigated a lot of the risk.”

RI requirements

Ackley summed up “the most important piece” of Rhode Island’s Lead Hazard Mitigation Act of 2004: Landlords must go to a class for three hours of instruction on how to identify lead paint hazards and how to clean them up. If you are renting even just one unit, you must go to the class. Ackley suggests that awareness about what creates a lead dust hazard is alone enough to change landlords’ behavior.
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The basic rule in Rhode Island is to keep paint intact. All the surfaces of properties built before 1978 (when lead paint was finally banned) are presumed to contain lead paint unless otherwise proven. All these surfaces must have intact paint.

Other actions are also required. Friction surfaces – where two components rub against each other, such as windows when they are opened or closed – must be made paint-free or friction-free. Misaligned doors, for example, must be rehung or planed down to stop rubbing. Paint must be stripped from windows or jamb liners must be installed. Or the third and most expensive option is to replace the windows.

All horizontal surfaces in an apartment or in common areas must be made smooth and cleanable.
Sometimes just a fresh coat of paint is all that is required.
Landlords must also deal with the soil within five feet of an apartment building or child’s play area by covering it with grass, mulch or pavement or making it inaccessible to children with shrubs or fencing.

Contrast to MA

All these approaches to lead hazard mitigation are far less costly and – even more important – far less dangerous than Massachusetts’ scraping. This scraping creates huge amounts of toxic lead dust that must be carefully protected from contaminating the apartment, the occupants and the workers. Meanwhile, Massachusetts law does nothing about soil lead.

Massachusetts attempts to make apartments permanently lead safe, leaving no responsibility on tenants. In contrast, Rhode Island requires landlords to give tenants information about lead hazards and then requires tenants to report to their landlords any lead hazards that may develop during the tenancy. Since all paint gradually deteriorates even after Massachusetts-style abatement, the Massachusetts approach, after all its cost, is not a long-term solution to stopping lead dust from poisoning children.