New Haven Register (Sunday) (New Haven, CT)
‘A terrible choice’
As city children suffer lead poisoning, officials debate policy
NEW HAVEN — An environmental issues consultant is advising the city that it does not have to proceed with testing housing for toxic levels of lead paint until a child’s blood lead level is three to four times what New Haven has been using.
Attorney Amy Marx, who has brought several New Haven cases to court seeking injunctions to get apartments abated in a timely manner as children’s blood lead levels increased, said such a change in policy would be “outrageous.”
“It defies the common sense meaning of the rule of law. In addition, as a matter of policy, it would be a terrible choice to decide to roll back protections we have had for decades,” Marx said.
Attorney Nancy Mendel, who has practiced environmental law for more than 20 years, said she has been the city’s environmental consultant for more than a decade. She said Mayor Toni Harp called her in for advice when the abatement cases started ending up in Housing Court and the number of potential
abatements increased.
The fight has several elements, driven by rising costs.
One issue is when to test the toxic lead level in paint that sets off an order to abate. Another is consideration of cost versus an early abatement to protect children. The third is who can change a policy based on an ordinance put into effect by the legislative body decades ago. The last is having two different policies on lead testing, one for federally supported housing and one for the rest of the city.
Marx said if the administration put a different policy into effect it would be “an abuse of power” without a change in the law, as well as a reversal in the national trend to lower the standard at which toxic lead in paint should be tested and then abated.
She said the federal Department of Housing and Urban Development already mandates an environmental review of the thousands of public housing and Section 8 apartments it underwrites at the same lower trigger now used by the city under its ordinance.
Acting under a higher standard “would create two sets of protection, with less protection for the rest of the city,” Marx said.
Mendel is taking issue with the interpretation of New Haven’s lead ordinance that the process of notifying parents and then fairly quickly proceeding to a test for toxic levels of lead begins when the city is notified that a child under age 6 has a blood lead level equal to or in excess of 5 micrograms per deciliter of blood.
Once high levels of lead are found in painted interior and exterior surfaces, as well as in the soil, an order to the landlord to abate the area sets off a tight 30-day timeframe with which Mendel said the city cannot keep up.
“New Haven has experience with having lowered the level that it goes and tests at. What has happened is an unintended consequence where it has overwhelmed our resources and our costs to be able to track. We don’t have the inspectors to do all this,” Mendel said.
Mendel contends the only legal requirement the city is mandated to follow is the state’s standard, which is also referenced in the city’s ordinance.
Testing for lead in paint chips and dust under the state’s standard occurs when a child’s blood lead level is equal to or greater than 20 micrograms per deciliter of blood or there are two tests within three months that show the level has stayed at 15 micrograms per deciliter.
The attorney said the city is now the “test case” for what happens when a lower standard is in place.
Mendel said that does not mean the city does nothing until the blood lead level reaches 20 micrograms per deciliter.
She said it is her understanding that the inspectors advise parents on nutrition, the importance of keeping the apartment clean of flaking paint and dust that can contain lead and are warned about certain toys that could contain lead.
But Marx said under the New Haven law, the city Department of Health has protected children at the Centers for Disease Control and Prevention “reference level of concern” since 1990, when the Board of Aldermen at that time updated a 1972 ordinance on lead poison prevention by looking to the CDC.
Marx has estimated through statistical ratio analysis that 363 children ages 6 and under suffered from lead poisoning in New Haven in 2017, according to a revised city and state Department of Health standard, as well as the standard set by the Centers for Disease Control and Prevention. (over 5 micrograms of lead per deciliter of blood)
Harp, in her state of the city address last month, said that while 494 children in New Haven were reported at or above 10 micrograms of lead per deciliter of blood in 2002, in 2017, the “number of children reported at that level or above had shrunk to 90. Efforts to continue that precipitous decline — one housing unit at a time — continue.”
Marx said the state Department of Health itself, in its 2016 annual disease surveillance report, states that children with a blood lead level equal to or greater than 5 micrograms per deciliter of blood “are considered to be lead poisoned.” The state lowered its “case management action level” from 10 to 5 to correspond with the CDC reference value.
That CDC level of concern has continued to drop to a lower trigger over the years and reached a blood lead level of 5 micrograms per deciliter in 2012.
Mendel is challenging the interpretation of the city’s ordinance that defines lead poisoning as a “blood lead concentration equal to or greater than 20 micrograms per deciliter of whole blood, or any other abnormal body burden of lead
as defined by the Centers for Disease Control and Prevention.”
The last part has been interpreted as referring to the CDC’s level of concern by Marx, as well as the city, which has issued abatement orders based on it, some of which will end up being prosecuted in Housing Court.
Mendel contends that “any other abnormal body burden of lead” does not equate to a blood lead level that eventually can lead to an abatement order.
“It means any kind of level of lead found otherwise than in the blood,” she said.
Mendel said reaching the “level of concern” means a child has been exposed to lead and while the next question is what is that source, it does not mean an immediate need to technically test for toxic lead paint levels.
“The leading cause of lead poisoning in Connecticut is the paint in homes where families live,” according to J.L. Pottenger Jr., supervising attorney for the Housing Clinic at the Yale Law School, who recently testified on a bill being discussed at the state.
Mendel said the city “made a discretionary determination that this was the right thing to do, let’s say,” when it chose to use the level 5 to begin inspections.
She said she is trying to get the city “back on track so they don’t end up spending inordinate amounts of money in court when all they are trying to do was a good thing and take care of children.”
Mendel contends that the sometimes two-to-three-month process to qualify for a federal Housing and Urban Development loan for a homeowner to help pay for an abatement throws off the tight timeline defined in the law by the city and the state.
Court testimony in the suits brought by Marx found that abatements had to be redone after the city had signed off on them. Also, there was a failure to file plans on land records outlining the necessary maintenance and inadequate notification of parents.
Three different judges have ordered abatements to be done by the city and the families moved out, if the homeowner is unresponsive or can’t afford to do the work, with the city leining the property or seeking HUD funds for repayment. A request has been sent to the city seeking what the cost has been.
In a recent case that came before an aldermanic committee, the city spent $60,777 for the abatement and relocation of a family living on Elm Street. The home was recently sold and the city has been repaid.
Marx maintains the issue is not with the city’s ordinance but with the administration of the city’s health department, which can be fixed.
“There is no doubt that the court cases against the city showed that it was doing an absolutely terrible job protecting the health of the children in New Haven whose blood lead levels were 5 micrograms and more per deciliter. But the response to this is to do the job properly, not to abdicate its responsibility. The inefficiencies can and should be fixed at this moment in time when other states have shown the way,” Marx said.
The city has to appoint a lead poisoning advisory committee, which Mendel said will help establish policies going forward. Marx said the New Haven Legal Assistance Association is demanding that it be named to the group as an “outside objective body that has seen the details of the problem.” She said the law can’t be overridden simply because the city won’t admit administrative inadequacies.
There is a bill before the state Public Health Committee that would make the lower standard mandatory statewide, and it is being opposed by towns and the state Department of Health as too costly and burdensome to meet, but praised by advocates working in the field.
Attorney Emily Benfer, the director of the Health Justice Advocacy Clinic at Columbia Law School and a national expert on lead poisoning prevention and healthy homes legislation, sent testimony to committee.
In 2016, she said there were 1,895 children under age six, according to the state, whose blood lead levels would have to reach 20 micrograms per deciliter before an environmental investigation of their homes was required.
She said the state’s level of 20 is based on the CDC’s 1991 recommendations and “no longer comply with medical or scientific recommendations. As a result, they fail to protect children from an entirely preventable disease and the severe and permanent brain damage lead poisoning causes.”
Benfer said the CDC and the American Academy of Pediatrics agree that “no amount of lead in the blood is safe and children require a wide margin of safety . ... Lead poisoning presents an urgent health and safety threat to children, causing irreversible neurological harm that affects bodily functions, growth, cognition, behavior, and development.”
“At the lowest levels of exposure, lead poisoning can lead to permanent brain damage and premature death, reduced IQ, diminished intellectual and academic abilities, academic failure, juvenile delinquency, high blood pressure, learning disabilities, behavioral problems, development delay and premature death,” she wrote, referencing the World Health Organization.
Raul Pino, commissioner of public health in Connecticut, also submitted testimony, which was mirrored by statements from towns and regional groups representing municipalities as to the cost factor.
He said an estimated 120 inspections are required under the current lead statutes, which are time consuming and require local health department resources.
“The implementation of the changes outlines in this proposed bill would result in an additional 1,200 comprehensive lead inspections and epidemiological investigations annually. The four local health departments with the highest percentage of lead poisoned children would bear the responsibility of 900 of those inspections, increasing their annual caseload by 160-300 inspections,” Pino wrote.
One section of the bill goes beyond the level used in New Haven where children would be tested at lead levels of 3 and 4 micrograms per deciliter, which Pino questioned. He said the cost of the bill would be significant.
While he supports the intent, “The financial barriers to implement these changes would be difficult to overcome.”