Energy, Science and Natural Resource Program

The Residential Lead-Based Paint Hazard Evaluation and Control Act

Model Legislative Language

Based on the July 1995 Report of the National Task Force on Lead-Based Paint Hazard Reduction and Financing Document

August 1996

ISBN 1-55516-517-6

Edited by Doug Farquhar, Program Principal for Lead Hazards Project

Preface and Acknowledgments
Overview
Residential Lead-Based Paint Hazard Evaluation and Control Act
I. [Short Title]
II. [Legislative Findings]
A. The Nature of the Problem
B. Sources and Pathways of Exposure
C. Standards for Lead-Based Paint Hazard Evaluation and Control
III. [Purpose]
A. Standards of Lead-Based Paint Maintenance and Hazard Control
B. Enforcement Mechanisms
C. Limitations on Liability
D. Alternative Compensation
IV. [Definitions]
A. Deteriorating Lead-Based Paint
B. Dust Test
C. Interim Controls
D. Lead Hazard Screen
E. Safe Work Practices
F. Unit 8
V. [Lead-Based paint Maintenance and Lead-Based Paint Hazard Evaluation and Control Requirements Applicable to Owners of Rental Dwelling Units Built Before 1978]
A. Applicability
B. Essential Maintenance Practices
C. Response to Reports of a Child with an Elevated Blood Lead Level
D. Unlawful Practices in Renting or Leasing
E. Control of Identified Lead-Based Paint Hazards
VI. [Additional Lead-Based Paint Hazard Control Requirements Applicable to Owners of "Higher Priority" Rental Units]
A. Definition of "Higher Priority"
B. Lead-Based Paint Hazard Evaluation and Control Options
C. Lead Hazard Control Plan D. Standard Treatments
VII. [Documentation of Compliance]
A. Certificate System
B. Duties and Benefits
VIII. [Alternative Compensation System; Offer of Remedial Compensation]
A. Alternative Compensation System for a Child with an Elevated Blood Level
B. Medical Reimbursement
C. Offer of Remedial Compensation
IX. [Civil Liability]
A. Injunctive Relief
B. Rebuttable Presumptions and Liability Limitations
X. [Enforcement Provisions]
A. Inspection and Enforcement Authority
B. Preservation of Existing Code Violation Procedures and Remedies
C. Additional Housing Code Violations
D. Enforcement in Economically Distressed Housing
XI. [Effective Dates]
A. Regulatory Deadlines
Appendix: Recommendations of the Task Force Applicable to State Legislatures and Executives Preface and Acknowledgments

Preface and Acknowledgments

The Residential Lead-Based Paint Hazard Evaluation and Control Act: Model Legislative Language provides guidance for state legislators, legislative bill drafters and state policymakers for translating into applicable state law the conclusions and recommendations of the National Task Force on Lead-Based Paint Hazard Reduction and Financing.

NCSL thanks the Alliance To End Childhood Lead Poisoning and the Department of Housing and Urban Development for their support in funding this publication under cooperative agreement number DCLPT 0003-95.

The editor is grateful to the following experts for their contribution of information, careful review and editorial advice:

Don Ryan, Jim Rochow and Pierre Erville of the Alliance To End Childhood Lead Poisoning; Stephanie Pollack of the Conservation Law Foundation; Nick Farr of the National Center for Lead-Safe Housing; Paul Locke of the Environmental Law Institute; and Ohio State Senator Grace Drake.

Review, comment and many helpful suggestions were also provided by the task force Implementation Steering Committee, which consists of the following additional individuals:

Jack Anderson, National Center for Lead-Safe Housing; Doreen Cantor, U.S. Environmental Protection Agency; Patrick Connor, Connor Environmental Services; Cushing N. Dolbeare; Colleen Duffy, Massachusetts Housing Finance Agency; Marcheta Lee Gillam, Cincinnati Legal Aid; Bob Haug, New Jersey Bureau of Housing Services; Win Hayward, Federal National Mortage Association (Fannie Mae); Evan Henry, Bank of America Environmental Services Unit; Jerry Hershovitz, Centers for Disease Control and Prevention; Eileen Lee, National Multifamily Housing Council; Maurci Jackson, United Parents Against Lead; Jim Kimble, American Insurance Association; Lisa B. Malone, National Urban League; Amy Murphy, Milwaukee Lead Program; Janet Phoenix, National Lead Clearinghouse; Rebecca Rex, Texas Parents Against Lead; Joan Catherine Tetrault, U.S. Department of Housing and Urban Development; Charles Wilkins, National Corporation for Housing Partnerships.

Overview

In 1992 Congress enacted the "Residential Lead-Based Paint Hazard Reduction Act" as Title X of the Housing and Community Development Act to address lead-based paint hazards in the nation's housing. One of the act's mandates was to convene a national task force "to make recommendations on expanding resources and efforts to evaluate and reduce lead-based paint hazards in private housing."

To meet this mandate, the Department of Housing and Urban Development appointed a panel of 39 experts with diverse backgrounds to develop recommendations for dealing with lead hazards in private housing. This task force devised and agreed to 59 specific policy recommendations designed for implementation by rental property owners, lending institutions, insurers, the home improvement industry, state legislators and policymakers and federal agencies. These recommendations establish a strategic approach based on:

Benchmark national standards for maintenance and lead hazard control in private rental housing that specify property owners' responsibilities;

Changes to the liability and insurance systems to provide incentives for voluntary compliance and expedited equitable compensation to injured children;

Expanded and more responsive private financing;

Targeted public financing for hazard controls in economically distressed housing occupied by low-income families;

Public awareness initiatives to better inform affected parties.

Seventeen of these recommendations call for state legislatures and executives to enact and implement specific policies addressing lead-based paint hazard control. This report, Residential Lead-Based Paint Hazard Evaluation and Control Act: Model Legislative Language (MLL), offers state legislators and policymakers guidance as to the recommendations and conclusions of the task force and provides model language reflecting those recommendations to help in the drafting of state legislation. The MLL is designed to enable state legislators and policymakers to translate the approach devised by the task force into practical and workable legislation that reflects the concerns of the relevant and often competing interests involved with lead-based paint hazard control and its financing.

The MLL includes statements of rationale referring the reader to the appropriate task force report language and explaining the task force's reasoning. On a few points, the task force outlined several alternative policy recommendations, deferring the choice of policy to the states, based on individual state needs and priorities. Other components of a comprehensive state lead-based paint hazard evaluation and control program, such as screening children for lead or the training and certification of lead inspectors and abatement professionals, are not addressed, because the task force did not explicitly make recommendations related to them. However, task force recommendation 4-3 does suggest state legislatures adopt a comprehensive lead poisoning prevention program. State legislators and policymakers should realize that the scope of this MLL is limited to the specifics outlined in the task force recommendations and that other provisions (such as for certifying lead inspectors, risk assessors and abatement contractors) are needed to implement a truly comprehensive lead law.

Any model legislation requires redrafting to incorporate a state's legislative style and customs before an actual bill can be introduced. This MLL does not attempt to follow any particular state's specific drafting style, but rather provides a model to convey the tenets of the task force's approach. Although the MLL includes sections regarding the bill's title, definitions, the purpose of the law, legislative findings and effective dates, it is drafted as model legislative language, not a model law, to allow legislators and bill drafters the flexibility to mold it into legislation that responds to state and local needs.

The task force designed an approach that calls for the establishment of standards for lead-based paint hazard evaluation and control for all pre-1978 rental housing and additional requirements for "higher priority" housing, where lead-based paint hazards are more likely to exist. Under this approach, rental property owners who independently document compliance with all lead-based paint hazard evaluation and control requirements would be eligible for liability limitations established in state law. Tenants who live in units not in compliance with the appropriate standard would be provided injunctive relief to ensure owner compliance.

The MLL is drafted as a single piece of legislation to ensure that all critical elements of the legislative strategy are covered. The structure of the MLL follows the task force report. The first major section, § V, discusses lead-based paint hazard evaluation and control requirements applicable to all rental units built before 1978. These requirements include performing Essential Maintenance Practices (EMP) (special low-cost, practical measures designed to maintain lead-based paint in place in units in good condition). Additional requirements, outlined in § VI, apply to rental property owners of "higher priority" units. In addition, rental property owners are required to respond to notice of a child with an elevated blood lead level residing in one of their units and any identified lead-based paint hazards.

The task force recognized that a system of certificates to document owner compliance would be effective in determining whether a unit is free of lead, has been abated for lead or has had its lead-based paint hazards controlled. Section VII of the MLL establishes a certificate system, administered by independent, state-certified risk assessors or lead inspectors.

Section VIII provides for alternative compensation and a system of "offers of remedial compensation." Section IX establishes a set of changes to the legal system, providing additional tools to compel compliance as well as liability limitations that serve as incentives to encourage voluntary compliance. These sections are designed to amend the legal system to make it more efficient and equitable in compensating poisoned children, while at the same time providing meaningful liability limitations for complying rental property owners. Alternative compensation is made available to children with elevated blood lead levels ineligible to receive benefits from Medicaid or other health care programs and who are unable to obtain compensation from a rental property owner. The offer of remedial compensation establishes a statutory compensation system for rental property owners and tenants who meet certain criteria. The liability provisions grant specific liability limitations for eligible rental property owners.

The final two sections provide for enforcement of the law and effective dates.

The task force recognized that lead poisoning is a complex issue and that there are no simple solutions. Many laws are vague, unrealistic, outdated or unprotective and should be revised to establish workable and protective standards and to provide incentives for property owner compliance that will ultimately protect children. The MLL presents the approach devised by the task force to make state laws clearer, more protective and enforceable for property owners, children and states.

For additional background and information, legislators, policymakers and bill drafters using the MLL should refer to the full report of the national task force entitled, Putting the Pieces Together: Controlling Lead Hazards in the Nation's Housing, available through HUDUser at (800) 245-5154.

Residential Lead-Based Paint Hazard Evaluation and Control Act

Be it enacted by the general assembly of the state

A LAW TO prevent childhood lead poisoning; ensure access to medical care and financial compensation for costs incurred due to injuries received as a result of exposure to lead-based paint hazards; provide incentives for property owners, insurance companies and lenders to respond in an effective and safe manner to the presence of lead-based paint hazards in rental housing units and preserve affordable and safe housing.

I. [Short Title]

This act may be cited as the Lead-Based Paint Hazard Evaluation and Control Act.

II. [Legislative Findings]

The legislature finds that:

A. The Nature of the Problem

1. Lead is a naturally occurring element that is toxic to humans when ingested or inhaled. Severe lead poisoning causes convulsions, mental retardation, seizures and sometimes death; low-level exposure to lead reduces intelligence, delays cognitive growth, impairs physical development and has been linked to antisocial behavior.

2. Fetuses and children under age six are most sensitive to lead poisoning because their brains and nervous systems are still developing.

3. Lead poisoning is the foremost environmental health threat facing children today. According to the U.S. Centers for Disease Control and Prevention (CDC), 1.7 million children under the age of six in this country have blood lead levels that exceed the level of concern established by the CDC. Yet lead poisoning is completely preventable.

4. [The appropriate state agency] has determined that lead poisoning is [widely] prevalent among children under six within this state.

B. Sources and Pathways of Exposure

1. The source of the most intensive exposures is deteriorating lead-based paint in older housing. The federal government estimates that some 64 million homes built prior to 1978 in this country contain some lead-based paintapproximately two-thirds of the entire U.S. housing stock. However, the mere presence of lead-based paint does not constitute a health hazard.

2. Deteriorating lead-based paint creates an exposure hazard, both through paint chips and lead-contaminated dust, which settles on surfaces. The primary pathway of exposure is lead-contaminated dust, ingested by children through normal hand-to-mouth behavior. Lead dust can be created by paint deterioration, abrasion and repainting and renovation projects that disturb lead-based paint without proper safeguards.

3. In some situations, lead-contaminated bare soil may also contribute to children's exposures either directly through outside play or through tracking dust inside. Lead in soil can come from deteriorating exterior paint, the residue of fallout from leaded gasoline and industrial sources.

C. Standards for Lead-Based Paint Hazard Evaluation and Control

1. This state currently lacks clear and specific standards for lead-based paint hazard evaluation and control that would make clear what measures a rental property owner needs to take to make homes safe for occupancy. As a result, the courts lack a statutory standard against which to measure a rental property owner's conduct. Consequently, insurers are reluctant to provide coverage for lead-related liability claims, and lending institutions have concerns about financing rental properties that may contain lead-based paint.

2. Taking a statewide approach to lead-based paint hazard evaluation and control that is both workable and protective will encourage cost-effective measures that will protect children's health, allow lenders to offer loans and mortgages, help insurers provide appropriate liability insurance coverage and prevent residential rental property from being abandoned by owners.

Federal law requires that lead inspectors and risk assessors be trained and state certified to ensure the reliability of their evaluations and the documentation they provide to owners. Because lead paint abatement work is dangerous, abatement contractors must be certified and their workers must be properly trained and protected. Those performing "interim controls" (such as the repair of deteriorating paint) do not have to be certified but do need basic training about lead hazards.

III. [Purpose]

This act provides a comprehensive approach to lead-based paint maintenance and lead-based paint hazard evaluation and control, with the purpose of establishing a system predicated on cost-effective, health-protective measures to evaluate and control lead-based paint hazards in rental housing built prior to 1978.

These standards are intended to create lead-safe housing, not lead-free housing. Because so many homes contain some lead-based paint, having a clear set of standards can be helpful to owners of properties that contain lead-based paint as well as protect children from lead poisoning. These standards can also provide a means for lenders and insurers to gauge risks, which may increase the availability of financing and liability insurance for rental properties.

A. Standards of Lead-Based Paint Maintenance and Hazard Control

These standards make clear to a rental property owner the duties regarding the evaluation and control of lead-based paint hazards in pre-1978 rental dwelling units.

B. Enforcement Mechanisms

Enforcement mechanisms provided in § X of this act ensure compliance with the standards. Under certain circumstances, a rental property owner who fails to comply may be subject to both civil and criminal sanctions. In certain instances, a private right of action may help enable a tenant to obtain a court order compelling owner compliance with the requirements of this act.

To ensure more consistent and timely compliance with applicable lead-based paint maintenance and hazard control requirements, the task force recommends several adjustments to the legal liability system. Such adjustments should be based on an intent to make it more difficult for a property owner to avoid compliance with the law, an intent to facilitate punitive measures in case of noncompliance and an intent to reward independently verified, timely and full compliance by provision of appropriate limitations on liability, commensurate with the degree of hazard control achieved.

C. Limitations on Liability

This act provides for limitations on rental property owners' liability, under certain circumstances and subject to specific conditions. A rental property owner who can independently document compliance with the standards may be eligible for such liability limitations. This act places the burden of proof on the owner if such owner's rental property fails to meet the standards.

If property owners' liability is limited by state law, fairness requires that some mechanism be established to provide an alternative source of compensation for children who still become lead poisoned.

D. Alternative Compensation

Adequate alternative sources of compensation must be available for poisoned children who reside in rental housing whose owner is in compliance with the new statutory standards and is protected by certain liability limitations. Such alternate compensation includes funding for the provision of any necessary medical case management and relocation assistance for poisoned children living in such homes.

IV. [Definitions]

Because this act presumes that the state addresses training and certification of lead hazard evaluation and control professionals in another statute, certain terms, such as abatement, inspection, lead-based paint, lead-based paint hazards and risk assessment, are not defined. This act limits its definitions to the other specific terms necessary to implement the provisions of the task force report.

A. Deteriorating Lead-Based Paint

means any interior or exterior lead-based paint that is peeling, chipping, chalking or cracking or any lead-based paint on an interior or exterior surface, component or fixture that is damaged or deteriorated.

B. Dust Test

means the sampling and analysis done to determine the loading of lead dust on a specific surface or component.

C. Interim Controls

means any set of measures designed to temporarily reduce human exposure or likely exposure to lead-based paint hazards, including specialized cleaning, repair, maintenance, painting, temporary containment and ongoing monitoring of lead-based paint hazards or potential hazards.

D. Lead Hazard Screen

means a form of risk assessment that involves visual inspection for deteriorated paint and limited dust sampling.

E. Safe Work Practices

means a set of measures designed to protect workers, occupants of the unit and others by preventing the creation of lead-based paint hazards during activities that disturb paint that may contain lead.

F. Unit

means a detached single-family dwelling unit, including attached structures such as porches and stoops or a single-family dwelling unit in a structure that contains more than one separate residential dwelling unit, which is used or occupied, or intended to be used or occupied, in whole or in part, as the home or residence of one or more persons.

V. [Lead-Based Paint Maintenance and Lead-Based Paint Hazard Evaluation and Control Requirements Applicable to Owners of Rental Dwelling Units Built Before 1978]

Standards of lead-based paint maintenance and lead-based paint hazard evaluation and control define the conditions and steps needed to control lead-based paint hazards in rental properties that may contain them. See task force recommendation 3-1 and pages 60-69 of the task force report. Independent documentation of compliance with such standards is needed to qualify for any potential limitations on liability. See task force recommendation 6-7 and page 118 of the task force report.

Lead inspections are not required under this act. However, if a certified lead inspector finds that no lead-based paint is present on the property's interior and exterior surfaces, components and fixtures, other maintenance and lead hazard evaluation and control requirements do not apply. Owners may also benefit from knowing exactly which surfaces have lead-based paint, as such knowledge may reduce the costs of hazard control and ongoing monitoring. See task force report pages 62-63.

A. Applicability

Unless a rental property owner of a rental dwelling unit built prior to 1978 demonstrates by production of an independent inspection report that no lead-based paint is contained on any interior or exterior painted surface, component or fixture of such unit, the following maintenance and hazard control requirements shall apply.

Essential Maintenance Practices are not designed to control significant lead hazards. These low-cost, common-sense practices are intended to avoid the creation of lead hazards in units in good condition and to ensure the prompt, safe and effective repair of deteriorating paint and its causes. Implementation of Essential Maintenance Practices does not require use of certified contractors or laboratory tests and should not alone qualify owners for liability limitations. See task force exhibit 3-2 on page 67 of the report.

B. Essential Maintenance Practices

Within [--- number of days] after enactment of this act, the [appropriate state agency] shall issue regulations that incorporate and further define the following Essential Maintenance Practices (EMP) into applicable existing state regulations and codes. EMP require a rental property owner to:

1. Use safe work practices during work that disturbs paint that may contain lead.

2. Prohibit the use of unsafe work practices, including:

a. Open-flame burning;

b. Power sanding or abrasive blasting without HEPA vacuum attachments to contain dust;

c. Uncontained water blasting;

d. Use of a heat gun above 1100 degrees Fahrenheit; and

e. Dry scraping or sanding more than a specified de minimis amount of paint [e.g., 1 square foot per room].

3. Perform a visual examination for deteriorating paint at unit turnover and every 12 months thereafter unless the tenant denies access.

4. Repair deteriorating paint and the cause of the deterioration of more than a de minimis amount by:

a. Following safe work practices;

b. Diagnosing and correcting any physical conditions causing the paint deterioration, such as moisture problems or substrate failure; and

c. Performing dust tests in cases of extensive paint deterioration [e.g., more than 5 square feet per room].

5. Inform tenants how to report deteriorating paint to the owner. A rental property owner shall respond promptly and correct such paint deterioration safely and effectively. A rental property owner shall provide tenants a copy of EPA's May 1995 pamphlet "Protect Your Family from Lead in Your Home."

6. Train maintenance staff to understand lead-based paint hazards and safe work practices. Maintenance supervisors shall take a one-day course based on the HUD/EPA operations and maintenance/interim control training curriculum and shall ensure that workers either take the one-day training course or have a clear understanding of lead-based paint hazards, unsafe work practices, occupant protection and dust cleanup methods by such means as on-the-job training and video instruction.

Although the purpose of this act is to prevent lead poisoning, children who are identified as poisoned deserve and must receive high-priority attention. The following section clarifies the property owner's response to a lead-poisoned child, regardless of action taken by the health department. See task force exhibit 3-3 on page 68 of the report.

C. Response to Reports of a Child with an Elevated Blood Lead Level

Within [--- number of days] after enactment of this act, the [appropriate state agency] shall issue regulations that specify the proper response to notice of a child with an elevated blood lead level, living in a unit for at least 30 days, including requirements that a rental property owner of housing in which such a child lives shall:

1. Cooperate with state and local [applicable health and housing department(s)] investigating the child's case by:

a. Responding to requests for information necessary to complete an environmental investigation,

b. Providing reasonable access to the unit and the property to perform an environmental investigation, and

c. Implementing lead hazard evaluation and control measures as directed by the [applicable health/housing department(s)].

2. Obtain a risk assessment of the unit by an independent, certified risk assessor, unless:

a. The unit has been assessed within the preceding 30 days by the [applicable health/housing department(s)] and the rental property owner is complying with the department's directives, or

b. The unit has been assessed within the preceding 30 days by an independent, certified risk assessor who has issued documentation, valid at the time the child with an elevated blood lead level is identified, certifying compliance with all lead hazard evaluation and control requirements and no subsequent lead-based paint hazard control work has been performed.

3. Notify affected tenants of the results of the risk assessment and any hazard control activities to be undertaken.

4. Control such hazards within 15 days of the risk assessment if a lead-based paint hazard is identified by a certified risk assessor and conduct sufficient postintervention dust tests to verify that the unit is safe for occupancy, as specified by the regulations issued pursuant to § V. E. 7. If lead-based paint hazards are not controlled within the time period provided by law, the owner shall pay to relocate the family of the child with an elevated blood lead level (EBL) to a comparable unit with no lead-based paint hazards and shall be prohibited from renting the contaminated unit to any others until the lead hazards in it are controlled.

D. Unlawful Practices in Renting or Leasing

Within [-- number of days] after enactment of this act, the [appropriate state agency] shall adopt regulations prohibiting retaliation by a rental property owner against a tenant who reports a lead-based paint hazard or a child with an EBL.

Section E. 1 does not apply in the case of a Lead Hazard Control Plan (see § VI. C). The risk assessor who develops the Lead Hazard Control Plan has the responsibility to make determinations about the timing of lead hazard controls on a unit-by-unit basis, based in part on the presence of a child under six or a pregnant woman.

E. Control of Identified Lead-Based Paint Hazards

Within [-- number of days] after enactment of this act, the [appropriate state agency] shall issue regulations specifying the proper control of lead-based paint hazards identified by a certified risk assessor or staff of the applicable state agency, which shall:

1. Specify the response time in accordance with which a rental property owner shall control lead hazards. In a unit with interior lead-based paint hazards that is occupied or frequented by a pregnant woman or a child under six, the response time shall be prompt and in no case take more than 30 days. In a unit not occupied or frequented by a pregnant woman or a child under six or used as a child care facility, the owner shall implement hazard controls not later than the following unit turnover.

This two-tiered schedule for responding to an identified lead hazard reflects the priority-based nature of this statutory structure. Lead hazards in a unit occupied by a young child or a pregnant woman demand immediate attention. The response in other units may be performed when the unit becomes vacant, which avoids the additional risks, complications and costs related to working in an occupied unit. See task force exhibit 3-4 on page 70 and text on page 69 of the report.

2. Require that contractors certified pursuant to 15 U.S.C. 2682 and 2684 perform any abatement activities.

A rental property owner usually has the option of deciding which hazard control measure is most appropriate, either interim controls or abatement. However, in certain situations abatement of lead-based paint hazards is the only acceptable method, and abatement projects must be performed by a certified contractor.

3. Specify that abatement of lead hazards, including the repair of any underlying causes of paint deterioration, is required under the following circumstances:

a. When a state or court orders abatement of an unit;

b. When interim controls have failed twice on the same surface, component or fixture;

c. When the underlying causes of paint deterioration have not been corrected; or

d. When a certified risk assessor determines abatement is the only effective control measure pursuant to criteria established by [the appropriate state or local agency].

4. Require that workers who perform any interim controls are appropriately trained.

5. Require safe work practices.

6. Specify appropriate measures to protect occupants from lead hazards, including temporary relocation if necessary.

Because lead dust can be invisible to the naked eye, the only way to ensure that lead-contaminated dust is not present is to perform dust tests.

7. Require sufficient dust testing by a certified independent individual at the conclusion of hazard control activities, to verify that the unit is safe for occupancy.

VI. [Additional Lead-Based Paint Hazard Control Requirements Applicable to Owners of "Higher Priority" Rental Units]

"Higher Priority" units are those that are presumed to have a greater likelihood of containing lead-based paint hazards, such that implementation of Essential Maintenance Practices alone will generally not be sufficient to ensure a reasonable likelihood of safety. However, unit-specific data supersede a unit's higher-priority classification. See task force recommendation 3-2 and pages 69-72.

In establishing criteria for the identification of Higher Priority units, the task force recommended that states consider pre-1950 housing as higher priority because these units generally contain more lead-based paint and paint with greater concentrations of lead in them. However, other factors, such as high-prevalence rates of lead poisoning, significant housing deterioration, presence of young children or demographic factors can be used to identify Higher Priority housing. If a unit passes two consecutive evaluations, either lead hazard screens, risk assessments or reevaluation by a certified individual, then the unit should no longer be considered Higher Priority, unless the owner fails to perform Essential Maintenance Practices, respond to a child with an elevated blood lead level or correct any identified lead-based paint hazards. See pages 69-73 of the task force report.

A. Definition of "Higher Priority"

Within [-- number of days] after enactment of this act, the [appropriate state agency] shall promulgate regulations to identify a subset of pre-1978 rental units as Higher Priority units.

1. If an independent, certified risk assessor determines in two consecutive lead hazard screens or risk assessments, conducted at an interval of between 12 and 18 months, that a higher priority unit contains no lead-based paint hazards, then such unit shall no longer be classified as Higher Priority. The unit's status shall revert back to Higher Priority upon sale of the property or if the owner of such unit fails to implement all applicable remaining requirements prescribed for pre-1978 rental units pursuant to the regulations promulgated in accordance with § V.

2. A rental property owner of a pre-1978 rental unit may have a lead inspection performed by an independent, certified risk assessor to determine whether the unit is free of lead-based paint on interior and exterior surfaces, components and fixtures. A rental property owner in receipt of such documentation independently certifying that a unit does not contain lead-based paint on any interior or exterior surface, component or fixture is exempt from lead-related maintenance and lead-based paint hazard evaluation and control requirements as to such units.

A risk assessment can either be a full risk assessment or, if the property is in good condition, a lead hazard screen. A full risk assessment includes a visual examination for deteriorating paint (as well as substrate, structural and moisture problems that may threaten the paint's integrity) and environmental samples of lead in dust and bare residential soil. A lead hazard screen is an abbreviated risk assessment that uses fewer dust samples, but more stringent dust standards, and costs less to perform than a full risk assessment. See pages 73 and 74 of the task force report.

B. Lead-Based Paint Hazard Evaluation and Control Options

In addition to the requirements applicable to all pre-1978 units pursuant to § V, a rental property owner of a Higher Priority property shall, at each unit turnover (unless such performance has already occurred within the previous 12 months) and in occupied units when the amount of deteriorating paint is extensive [as defined by the appropriate state agency] as well as in units that have remained continuously occupied for 18 months by a family with a child under age six, perform either of the following:

1. Obtain a lead hazard screen by a certified individual. If the screen determines that lead is present in [levels determined by the appropriate state agency], the rental property owner must obtain a risk assessment pursuant to § VI. B. 2.

2. Obtain a risk assessment by a certified risk assessor and either:

a. Implement lead hazard control measures for each identified lead-based paint hazard, in accordance with the requirements promulgated pursuant to § V. E; or

b. Develop and implement a Lead Hazard Control Plan, if the owner's units are eligible, pursuant to the requirements promulgated under § VI. C.

3. Implement Standard Treatments, pursuant to § VI. D.

Allowing property owners to take different approaches in making higher-priority properties lead-safe recognizes the varying needs and conditions of different higher-priority properties. Some property owners may prefer to avoid the cost of a certified risk assessor and instead incorporate Standard Treatments in their maintenance procedures. Other property owners may find it more cost-effective to get a lead hazard screen, if their property is in good condition, or a risk assessment; owners of multifamily properties are likely to find the Lead Hazard Control Plan preferable. See task force recommendation 3-3 and pages 72 and 73 of the report.

A property owner of five or more dwelling units may elect to control lead hazards pursuant to a Lead Hazard Control Plan, which must be developed by a certified independent risk assessor. See task force exhibit 3-5 and pages 74 and 75 of the report.

C. Lead Hazard Control Plan

The [appropriate state agency] shall issue regulations specifying the necessary elements to be included in a Lead Hazard Control Plan for a rental property owner of Higher Priority rental housing units who chooses to implement a Lead Hazard Control Plan, which shall:

1. Require a rental property owner to:

a. Implement Essential Maintenance Practices, pursuant to § V. B. 6;

b. Respond to notice of a child with an elevated blood lead level, pursuant to § V. C. 6;

c. Control identified lead-based paint hazards based on the schedule set forth in the plan, using effective hazard control techniques and sufficient dust testing.

Under the Lead Hazard Control Plan approach, the timing of lead hazard controls is not subject to the deadlines prescribed under § V. E. 1. Rather, the risk assessor who develops the Lead Hazard Control Plan determines the order and timing pursuant to which hazard controls in particular units are to be prioritized. Such decisions are based on whether individual units contain or are anticipated to contain households with a child under age six or a pregnant woman. Similarly, rather than automatically conducting an identical number of dust clearance tests in each unit subject to the Lead Hazard Control Plan, the risk assessor should determine how many dust tests are sufficient in particular units, in applying the dust testing requirements established pursuant to § V. E. 7, to ensure that specialized cleaning is being conducted in an effective manner throughout the property. See task force exhibit 3-5 and pages 74 and 75 of the report.

2. Require a rental property owner to prioritize lead hazard controls in any unit occupied or frequented by a child under six or a pregnant woman, by making lead-based paint hazard control of such units subject to an accelerated schedule.

A Lead Hazard Control Plan requires a certain percentage of all units in a property to have lead-based paint hazards controlled and encourages the matching of families with young children or a pregnant woman with these controlled units.

3. Specify the percentage of all units in which lead-based paint hazards shall be controlled within a determined period, with first priority to all units housing a child under six or a pregnant woman, and require a rental property owner to:

a. Phase-in implementation of lead hazard control activities in a specified percentage of units, within a specified period of time, until lead-based paint hazards have been controlled in a specified number of the units;

b. Inform each family with a child under six or a pregnant woman of the availability of unoccupied units in which all lead-based paint hazards have been controlled; and

c. Seek to match each family with a child under six or a pregnant woman to a unit that contains no lead-based paint hazards through such means as affirmative marketing.

4. Establish protocol for maintenance and specialized cleaning of units at turnover.

5. Establish strategy and protocol for lead-based paint hazard control in common areas, based on the results of the risk assessor's report.

6. Establish a schedule for ongoing monitoring by an independent, certified risk assessor, including periodic visual inspection of the premises and sampling of lead dust levels. [The appropriate state agency] shall set relevant clearance standards in accordance with § V. E. 7.

D. Standard Treatments

Within [-- number of days] after enactment of this act, the [appropriate state agency] shall promulgate regulations incorporating and further defining the following Standard Treatments for a rental property owner of a Higher Priority rental housing unit who chooses to implement Standard Treatments. Such rental property owner shall have Standard Treatments performed by appropriately trained individuals, whenever the unit is at turnover, unless performed within the previous 12 months, and when a unit has been continuously occupied by a family with a child under six for 18 months. Rental property owners who elect to perform Standard Treatments are required to:

1. Repair deteriorated paint using safe work practices set forth pursuant to sections V. B. 1, 2, 4, and 6;

2. Provide smooth and cleanable horizontal surfaces, including floors, window sills and window wells;

3. Correct conditions in which painted surfaces are rubbing, binding or being crushed, unless the paint is found not to be lead-based paint;

4. Cover or restrict access to bare residential soil unless it is found not to be lead-contaminated;

5. Implement specialized cleaning of work areas upon completion of § VI. D. 1-4. During treatment of an occupied unit, only surfaces that are accessible need to be cleaned; and

6. Perform dust tests upon completion of § VI. D. 1-5 to verify that applicable lead dust clearance levels have been achieved in accordance with § V. E. 7.

VII. [Documentation of Compliance]

A reliable system for documenting a property's lead hazard status is important to owners, tenants, lenders and insurers. In addition, independent documentation of compliance may qualify owners for potential limitations on their liability.

In establishing this system, the appropriate state agency will need to promulgate detailed regulations defining the administration and operation of this system. Certain provisions will need to be specified in the regulation, such as the time period the certificate shall remain valid, the appropriate circumstances and procedures for revoking certificates, notification to the tenants of the existence of certificates applicable to their unit and record-keeping requirements for rental property owners with certificates. See task force recommendation 6-11 and pages 123 and 124 of the report.

A. Certificate System

Within [-- number of days] after enactment of this act, [the appropriate state agency] shall develop regulations that establish a Certificate of Lead-Free Status, a Certificate of Abatement and a Certificate of Lead Hazard Control and the procedures pursuant to which they are awarded and under which they may be revoked and any pertinent record-keeping and tenant notification requirements.

1. The Certificate of Lead-Free Status documents that a certified independent risk assessor has made a determination that a unit contains no lead-based paint on any interior or exterior surface, component or fixture. Such a determination shall be based on the results of X-ray fluorescence tests, laboratory analysis of paint samples or other methods approved by [the appropriate state agency.]

a. A Certificate of Lead-Free Status issued in accordance with these provisions shall remain valid unless it can be demonstrated that the certificate was fraudulently obtained or any interior or exterior surface, component or fixture in the unit in question contains lead-based paint.

2. The Certificate of Abatement documents that a certified, independent risk assessor has verified that either no lead-based paint hazards are present in the unit, based on a lead inspection and dust and soil tests, or that all lead-based paint hazards have been properly abated. This certificate shall also contain requirements for periodic ongoing monitoring by the owner to ensure that any remaining lead-based paint continues to be well maintained.

Abatement certificates must be renewed every 10-20 years to allow for verification that any lead-based paint remaining in the unit has not deteriorated.

a. A Certificate of Abatement issued in accordance with these provisions shall remain valid for a period of time to be specified by [the appropriate state agency] of at least 10 years, but no more than 20 years, with such validity contingent on compliance with all ongoing monitoring requirements and subject to revocation if fraudulently obtained. At the end of its period of validity, a Certificate of Abatement may be renewed by repeating the procedure set forth in § VII. A. 2.

3. The Certificate of Lead Hazard Control documents that a certified, independent risk assessor has verified that all lead-based paint hazards in a given unit have been properly controlled and applicable dust and soil standards have been met. This certificate shall also contain requirements for periodic ongoing monitoring by the owner to ensure that any remaining lead-based paint continues to be well maintained.

a. A Certificate of Lead Hazard Control issued in accordance with these provisions shall remain valid for a period of time to be specified by [the appropriate state agency], not to exceed 2 years, with such validity contingent on compliance with all ongoing monitoring requirements and subject to revocation if fraudulently obtained. At the end of its period of validity, a Certificate of Lead Hazard Control may be renewed by repeating the procedure set forth in § VII. A. 3.

Pursuant to § VI. A.1, owners of rental properties initially classified as Higher Priority units are no longer subject to the requirements of § VI if two successive lead hazard screens or risk assessments result in the determination that such units contain no lead-based paint hazards. However, to qualify for any of the applicable liability limitations available under § IX. B, such owners must ensure that the units remain covered by a valid certificate issued in accordance with § VII.

B. Duties and Benefits

A rental property owner who complies with all applicable requirements established by this act and any other applicable provisions under the law of [this jurisdiction] shall be eligible to secure a certificate pursuant to § VII A. and shall be eligible for liability limitations set forth in § IX for each unit to which the certificate applies, which liability limitations are in part conditional on the owner making an Offer of Remedial Compensation, in accordance with and when called for by the requirements under § VIII. C.

1. A rental property owner who secures a Certificate of Lead-Free Status shall be exempt from all duties under § V as to each unit for which the certificate applies.

VIII. [Alternative Compensation System; Offer of Remedial Compensation]

Currently, a very small percentage of children with elevated blood lead levels receive compensation for the costs of remedial medical treatment, relocation to safe homes or remedial education. By establishing a system of compensation to address these expenses and in particular by establishing a system based on Offers of Remedial Compensation, states can protect rental property owners from claims of lead-based paint liability as well as provide children with compensation for lead-based-paint-related injuries. Under such an approach, states could also then establish proportional limitations on liability for owners who demonstrate full and timely compliance with all applicable hazard control requirements, as documented by an independent inspector or risk assessor. See task force recommendations 6-1, 6-7 and 6-8 and pages 110-115 and 118-121 of the report.

A Fund of Last Resort is needed to ensure that children with elevated blood lead levels are never denied an opportunity to receive financial assistance to help cover medical and other necessary expenses related to their health. Examples of qualified recipients of such funds include a child with an elevated blood lead level who is unable to secure compensation from the owner because the owner holds a Certificate of Lead-Free Status, valid for the unit in which the child resides, and is therefore exempt from having to make an Offer of Remedial Compensation (see § VIII. C); or a child with an elevated blood lead level who has accepted an Offer of Remedial Compensation but who never receives the check from the owner. See task force recommendation 6-2 and pages 114 and 115 of the report.

A. Alternative Compensation System for a Child with an Elevated Blood Level

Within [-- number of days] after the enactment of this act, the [appropriate state agency] shall establish and fund a special Fund of Last Resort. Such fund shall make money available to cover reasonable out-of-pocket medical and relocation expenses for a child with an elevated blood lead level who is unable to secure such funds by any other means.

1. Within [-- number of days] after enactment of this act, the [appropriate state agency] shall promulgate regulations establishing the terms of eligibility, the protocol for applying for such funds and the manner and time periods within which such funds shall be released to eligible parties.

Medicaid, other state health care programs and regulated private insurers should be mandated to cover medical and, where medically necessary, relocation expenses for children injured by lead-based paint hazards. See task force recommendation 6-1 and pages 114 and 115 of the report.

B. Medical Reimbursement

All state Medicaid insurers, other state health care programs and regulated private insurers shall cover medical claims of their insured clients stemming from exposure to lead-based paint hazards, including costs to relocate an injured child if medically necessary.

An Offer of Remedial Compensation provides a mechanism for reducing tort litigation between owners of housing in compliance with lead-based paint maintenance and hazard controls and children with elevated blood lead levels. For owners to participate, they must receive either a Certificate of Abatement or Certificate of Lead Hazard Control for the unit. A rental property owner of a unit for which a Certificate of Lead-Free Status has been issued is exempt from having to make an Offer of Remedial Compensation for that unit. For an injured child to participate, the child must meet certain criteria based on length of residence in the unit, current blood lead level and absence of documented elevated blood lead levels prior to occupancy in the unit. See task force recommendation 6-8 and pages 119-121 of the report.

C. Offer of Remedial Compensation

Within [-- number of days] after enactment of this act, the [appropriate state agency] shall establish a remedial compensation system pursuant to which a rental property owner with a valid Certificate of Abatement or Certificate of Hazard Control shall respond to a request for remedial compensation from a child living in a unit owned by such owner, which child suffers from an elevated blood lead level. The response shall take the form of an Offer of Remedial Compensation that includes the following elements:

1. Within [-- number of days] after enactment of this act, the [appropriate state agency] shall establish a schedule of compensation that matches specific blood lead levels, or ranges thereof, with specific monetary amounts, or ranges thereof. Such compensation schedules shall be structured to reflect significant relevant factors such as:

a. Peak blood lead level;

b. Duration of blood lead elevation;

c. Duration of residency in the unit;

d. Typical medical costs associated with specific blood lead levels;

e. Typical remedial education costs associated with specific blood lead levels; and

f. Typical expenses associated with relocation to safe premises.

2. An Offer of Remedial Compensation may only be tendered by a rental property owner in possession of a valid Certificate of Abatement or of Lead Hazard Control, issued pursuant to § § VII. A. 2. or A. 3. and may only be tendered when the person requesting such offer is a resident of a unit covered by such certificate.

3. Within [-- number of days] after enactment of this act, the [appropriate state agency] shall issue regulations that define the eligibility terms and conditions for a child who shall qualify for an Offer of Remedial Compensation reflecting the schedule of compensation established under § VIII. C. 1. Such eligibility terms and conditions shall include:

a. A child with an elevated blood lead level shall be under age 6 at the time of the blood lead test;

b. A child with an elevated blood lead level shall have resided in the unit for at least 30 days prior to the blood test that resulted in such determination; and

c. The blood lead determination shall be confirmed by a venous sample.

Under the system of Offers of Remedial Compensation, prior to the filing of any lawsuit for lead-based paint claims, tenants would be required to provide the rental property owner written notice of the injury and request that the owner make an Offer of Remedial Compensation. A rental property owner who declines to make an offer would be ineligible for any liability limitations provided by this act, except for a rental property owner with a Certificate of Lead-Free Status, who is exempt from having to make an offer for any unit for which the certificate was issued. See task force exhibit 6-1 on page 120 of the report.

4. Within [-- number of days] after enactment of this act, the [appropriate state agency] shall issue regulations that set forth the procedures that a rental property owner and a tenant seeking remedial compensation for a child with an elevated blood lead level shall follow. Such procedures shall include:

a. A parent or guardian of a child with an elevated blood lead level meeting the eligibility terms and conditions defined pursuant to § VIII. C. 3 shall give the relevant property owner written notice of the condition and request the owner to make an Offer of Remedial Compensation.

The amount the owner offers is based on the schedule established by state officials under § VIII. C. 1. Expenses not yet incurred at the time of the offer could be paid out over time or in an initial lump sum.

b. A rental property owner meeting the eligibility terms and conditions defined pursuant to § VIII. C. 2 shall respond to such notice and request with a specific Offer of Remedial Compensation that shall conform to the state schedule issued under § VIII. C. 1 and that shall be delivered by certified mail within [a specified number of days to be determined by the appropriate state agency];

c. A parent or guardian of a child under age six in receipt of an Offer of Remedial Compensation who elects to reject such offer shall do so in writing, by certified mail, within [a specified number of days to be determined by the appropriate state agency];

The task force was silent on the issue of acceptance of an Offer of Remedial Compensation, but the Task Force Implementation Steering Committee believed that a failure of a tenant to respond to an offer should be considered an acceptance, rather than a rejection of said offer. Given that it is the tenant who initiates the entire process by requesting an offer, the tenant can reasonably be presumed to desire the compensation, so long as it is provided in conformance with the state-established schedule (see § VIII. C. 1). In other words, there is an implicit underlying expectation that an offer, once made, will be accepted, and a failure to respond (either at all, or in a timely fashion) should therefore not be considered a rejection of such offer. A rejection would then make litigation on behalf of the poisoned child an even more difficult proposition, given liability limitations that would then accrue to the benefit of the property owner (see § IX). For these reasons, the lack of response to an Offer of Remedial Compensation should be considered an acceptance by default.

d. A lack of response to an Offer of Remedial Compensation, or an untimely response thereto, shall be construed by a rental property owner as an acceptance of said Offer; and

e. Upon acceptance of an Offer of Remedial Compensation, a rental property owner shall promptly tender such compensation and in no case later than [a specified number of days to be determined by the appropriate state agency] after such acceptance.

Tenants who reject the offer may litigate in court, but such suits may be subject to the liability limitation provisions available to the owner under § IX of this act. See task force exhibit 6-1 on page 120 of the report.

5. Rejection of an Offer of Remedial Compensation shall not bar or impede the claims of a child with an elevated blood lead level or the child's parent[s] from filing a lawsuit against a rental property owner, although such a lawsuit may be subject to certain liability limitations pursuant to § IX of this act.

6. A rental property owner who declines to make an Offer of Remedial Compensation shall not be eligible for any of the liability-related benefits or limitations established pursuant to § IX of this act.

7. [The insurance commissioner or other appropriate executive or administrative branch of state government] shall establish a task force to explore ways of providing a rental property owner with remedial compensation insurance in conformance with the regulations set forth pursuant to this act, either as part of coverage under third-party liability insurance policies or through the creation of new insurance riders or products. Within six months of its establishment, said task force shall issue a report to the legislature, which shall include a set of recommendations to address the provision of remedial compensation insurance.

IX. [Civil Liability]

Under the task force approach, states would enact legislation that pairs the establishment of standards of maintenance and lead-based paint hazard control in rental housing with the establishment of liability- and compensation-related provisions. Moreover, the task force was unambiguous in asserting that liability limitations should not be enacted without also providing for an alternate mechanism of remedial compensation for children with elevated blood lead levels who are unable to secure such compensation by any other means. See page 118 of the task force report.

Legislatures have several options under these provisions for crafting liability limitations. Certain constitutional restrictions may apply. Moreover, legislatures may decide not to adopt any provisions that would change the legal system with respect to lead-based paint and lead hazards. Bill drafters who elect to follow this model language should consult relevant state law regarding liability limitations.

A. Injunctive Relief

The task force recommended that tenant households containing either a child under six or a pregnant woman be given a private right of action that would enable them to petition the appropriate court to issue a court order compelling owners who have failed to comply with applicable requirements of the act to undertake them immediately. This is a powerful tool for tenants and legal services attorneys, one that should help prevent noncompliance by owners. It advances the cause of primary prevention by its availability for use prior to a child being poisoned. See task force recommendation 6-3 and pages 115 and 116 of the report.

1. If a rental property owner subject to this act fails to comply with any of the provisions set forth pursuant to § V and § VI of this act, a private right of action shall exist, allowing households that include a child under six or a pregnant woman to seek injunctive relief against the owner, in the form of a court order to compel compliance with all such provisions or to compel relocation, paid for by the owner, of affected tenants to a comparable unit that contains no lead hazards. Injunctive relief shall be granted automatically upon a showing of the violation.

2. A court granting such injunctive relief shall have the authority to order relocation of occupants if noncompliance with any of the provisions set forth pursuant to § V or § VI of his act is found to pose a significant health risk to any member of the household seeking such relief and under such other circumstances as the court may deem appropriate.

3. Nothing related to the injunctive relief process shall be construed to limit the opportunity of any member of the household seeking such relief to seek and obtain monetary damages for any lead-related injuries incurred by any person living in such noncomplying unit.

4. The provisions under this subsection apply only after § V and § VI of this act go into effect.

B. Rebuttable Presumptions and Liability Limitations

The task force recommended that certain changes to the legal system be implemented in order to make it easier for a child with an elevated blood lead level to prevail in litigation against a rental property owner who fails to comply with the applicable requirements of this act. Conversely, the task force also recommended that owners who have independent documentation of their compliance (i.e., Certificate of Documentation pursuant to § VII) with the applicable requirements of this act be granted the benefit of certain rebuttable presumptions as well. The task force concluded that such presumptions and other liability limitations would provide a measurable incentive for voluntary compliance with applicable requirements by rental property owners. See pages 116-124 of the task force report.

1. A rental property owner who fails to adhere to Essential Maintenance Practices or any other applicable hazard control requirement shall be subject to a rebuttable presumption of noncompliance with the requirements of this act as to such unit in any lead-related litigation. Such owner shall be held to have notice of any lead hazards found in such unit, and if a child under six with an elevated blood lead level resides in such unit, the unit shall be presumed to have caused the elevated blood lead levels unless the owner can refute the presumption.

2. To be admissible in a court of appropriate jurisdiction, a dust test used to prove or disprove lead contamination within a unit must be performed by an independent inspector or risk assessor, certified pursuant to 15 U.S.C. 2682 and 2684.

The task force recommended that courts make mediation or nonbinding arbitration available in claims for injunctive relief to compel property owners to comply with lead-based paint hazard control requirements and more broadly in any tort litigation over lead-based paint claims. See task force recommendation 6-13 and pages 124-125 of the report.

3. Any legal actions or claims based on lead-based paint hazards brought by a pregnant woman or a parent or guardian of a child under age six against a rental property owner of a unit where the pregnant woman or child resides shall be subject, at the appropriate court's discretion, to mediation or nonbinding arbitration before the court hears the case.

The legislature may decide that in any damages action brought by any person alleging lead-based-paint-related negligence, a property owner shall be eligible for any or all of the following liability limitations. However, the task force was adamant that only states with alternative compensation systems in place should consider establishing liability limitations. See pages 116-118 of the task force report.

4. To qualify for liability limitations under this act, a rental property owner shall document compliance with the requirements of this act by producing a valid certificate obtained pursuant to the requirements set forth under § VII.

5. A rental property owner who produces a valid Certificate of Lead-Free Status shall be accorded a complete defense from lead-related liability as to each unit to which the certificate applies.

6. In cases in which a child with an elevated blood lead level resides in a rental housing unit for which a rental property owner produces a valid Certificate of Abatement or a valid Certificate of Lead Hazard Control, and remedial compensation made available pursuant to § VIII. C has been accepted by such child, the owner shall be eligible for a complete defense in any lead-related litigation brought by such child as to that unit, related to the elevated blood lead level for which compensation was accepted.

The task force suggested three types of liability limitations for qualifying rental property owners and recommended the state legislature determine the appropriate option. The options listed below provide for three separate approaches and may be adopted either singularly or in any combination. See task force recommendation 6-7 and pages 118 and 119 of the report.

7. In cases in which a child with an elevated blood lead level rejects remedial compensation made available pursuant to § VIII. C and resides in a rental housing unit for which a rental property owner produces either a valid Certificate of Abatement or a valid Certificate of Lead Hazard Control, such property owner shall receive the following liability limitations:

a. The owner shall have a maximum liability capped at [an amount to be determined by the state];

b. There shall be no punitive damages available against such owner; or

c. Only a plaintiff child with a blood lead level in excess of [an amount to be determined by the state] may bring suit.

Liability limitations to qualifying new owners are provided to encourage the purchase of residential real estate and to provide new owners with an opportunity to implement effective measures to maintain and control lead-based paint hazards. See task force recommendation 6-5 and page 117 of the report.

8. A new owner of a pre-1978 rental unit shall be exempt from any lead-related liability claims as to that unit for 90 days after the owner receives title of the property, provided the new owner implements Essential Maintenance Practices during such 90 days and promptly responds to tenant complaints of deteriorating paint conditions and to notification of a child under age six with an elevated blood lead level.

These liability limitations to qualifying lenders who foreclose on properties are provided to encourage lending for residential properties and to give lenders the opportunity to implement effective measures to maintain and control lead-based paint hazards. See task force recommendation 5-5 and pages 102-104 of the report.

9. A lender acquiring a pre-1978 rental unit through a foreclosure or a deed in lieu of foreclosure shall be exempt from any lead-related liability claims as to that unit for a period of [between 8 and 12 months, to be determined by the state] following acquisition of title to the property, provided the lender:

a. Originated the mortgage after the enactment of this act;

b. Responds promptly to occupant complaints regarding lead hazard-related code violations;

c. Responds to notification of the presence of a child with an EBL in accordance with the provisions set forth in § V. C of this act;

d. Implements Essential Maintenance Practices within 90 days after acquiring title;

e. Continues to adhere to Essential Maintenance Practices thereafter; and

f. Engages in diligent efforts to sell the property during the [8-12 month] period following its acquisition.

10. The provisions under subsection's 1, 2, and 3 apply only after § V and § VI of this act go into effect. The provisions under subsection 4 through 9 apply only after § § V, VI and VIII of this act go into effect.

X. [Enforcement Provisions]

A. Inspection and Enforcement Authority

Within [--days] after enactment of this act, the [appropriate state agency] shall be authorized to use all available existing enforcement powers to monitor risk assessors, inspectors, abatement contractors and other personnel as well as all properties subject to this act, for documentation of compliance with this act's provisions and shall be authorized to enforce such compliance.

1. Whenever a housing or building inspector is inspecting a pre-1978 residential dwelling unit occupied or likely to be occupied by a family with a young child or a pregnant woman, said inspector shall perform a visual inspection of all painted surfaces in such unit to check for the presence of deteriorating paint. If any deteriorating paint is found, the inspector shall report same to the [appropriate enforcement agency].

B. Preservation of Existing Code Violation Procedures and Remedies

Any violations of this act may be treated by any party as a violation of the [state or local housing/health/sanitary code] and all procedures and remedies applicable to such violations of said code shall be available to correct, deter or punish violations of said act. The [district, housing and superior] courts shall have jurisdiction to enforce the provisions of said act to the same extent that said courts have jurisdiction to enforce said code.

C. Additional Housing Code Violations

This subsection is reserved for further amplification pending forthcoming recommendations from an ongoing National Institute of Building Sciences project, focused on the development of appropriate code language to help control lead-based paint hazards in residential housing. The three provisions currently included in this subsection are examples of such potential code language. See task force recommendations 4-7 and pages 93 and 94 of the report.

1. The presence of extensive deteriorating paint in pre-1950 residential dwelling units shall be treated as a highest level housing code violation, unless such paint is shown not to be lead-based paint.

2. Units in which the property owner has failed to respond or has failed to respond in a timely manner to notification of deteriorating paint shall be subject to a highest level housing code violation, unless such paint is shown not to be lead-based paint.

3. The presence of a level of lead in interior dust that exceeds applicable standards established by the [appropriate state agency] pursuant to § V. E. 7 shall be treated as a housing code violation.

D. Enforcement in Economically Distressed Housing

Enforcement of the lead-based paint maintenance and hazard control requirements set forth pursuant to this act shall, when addressing economically distressed housing, take into account a rental property owner's documented financial need and such owner's demonstrated ongoing efforts to obtain financing or public subsidies. In such cases, the [enforcement agent] shall have authority to exercise flexibility and extend compliance schedules for such owners.

The task force was silent as to effective dates. However, the Steering Committee decided that effective dates were integral to any legislation implementing the task force's approach, to ensure each provision is promptly carried out.

Upon the date this act goes into effect, rental property owners will be unable to show compliance if the appropriate state agency has failed to implement its provisions. Therefore, it is critical that the state agency promulgate the rules within the number of days specified within the act and that the rules have appropriate effective dates to ensure that property owners are able to comply with state law.

XI. [Effective Dates]

This act goes into effect upon promulgation of the appropriate implementing regulations. All provisions of this act shall enter into effect no later than two years after enactment of the act whether or not regulations have been promulgated.

A. Regulatory Deadlines

The [appropriate state agency] shall issue appropriate regulations in accordance with the following schedule:

1. Upon the enactment of this act, the [appropriate state agency] shall issue regulations implementing § V. C, Response to an EBL Child, § V. D, Unlawful Practices and § V. E, Control of Hazards, including the "action level" for dust, as emergency regulations.

2. Within 90 days of the enactment of this act, the [appropriate state agency] shall issue regulations implementing § V. B, Essential Maintenance Practices, § VI. A, Definition of Higher Priority, § VI. B and § VI. B.1, definition of "extensive deteriorating paint" and the "action levels" for a lead hazard screen, § VI. C, Lead Hazard Control Plan, § VI. C. 6, definition of the "clearance level" for dust, § VI. D, Standard Treatments and § IX. B. 2, use of dust tests in court.

3. Within 180 days of the enactment of this act, the [appropriate state agency] shall issue regulations implementing the remaining applicable sections.

Appendix

Recommendations of the Task Force
Applicable to State Legislatures and Executives

Recommendation 3-1:

Standards for Pre-1978 Rental Housing

The task force recommends that the following three lead-based paint (LBP) maintenance and hazard control standards apply to pre-1978 rental units (unless an LBP inspection has found no LBP):

Essential Maintenance Practices;

Actions in response to notification of an EBL child;

Control of identified LBP hazards.

Recommendation 3-2:

Defining Higher-Priority Units

The task force recommends that pre-1950 housing be defined as the national benchmark for higher-priority units that state and local governments consider appropriate modifications based on factors including but not limited to age of the housing stock and location-based factors such as housing dilapidation or, where adequate blood lead screening data are available, above-average rates of EBL children.

Recommendation 3-3:

Establishing Additional Standards for Higher-Priority Housing

The task force recommends that LBP hazard control standards for higher-priority units require either:

Risk assessment/hazard control;

Control of identified LBP hazards;

Implementation of a Lead Hazard Control Plan; or

Standard Treatments.

Recommendation 4-3:

Creation of Comprehensive Prevention Programs by State and Local Governments

State and local governments should create comprehensive lead poisoning prevention programs by:

Incorporating LBP maintenance and hazard control standards into housing codes and health regulations;

Establishing screening programs to identify EBL children, ensuring follow-up housing interventions, protecting families with EBL children from improper retaliation and identifying priority areas for prevention efforts;

Seeking EPA approval of training and certification programs for risk assessors, inspectors and abatement contractors.

Recommendation 4-7:

Targeting Enforcement

The task force recommends that state and local governments target LBP enforcement efforts toward rental units with the highest risk of LBP hazards by:

Treating the presence of extensive deteriorating paint in pre-1950 units as a top-tier housing code violation (unless it is shown not to be LBP);

Focusing enforcement activities on high-risk rental units;

Units in which the property owner has not responded to notification of deteriorating paint;

Other units in a multifamily building with a an EBL child (and identified LBP hazards);

Units in neighborhoods with a high number of EBL children;

Performing a visual examination for deteriorating paint whenever housing and building inspectors are inspecting a pre-1978 unit occupied by a family with a young child or a pregnant woman;

Monitoring risk assessors, inspectors and abatement contractors as well as properties with lead hazard control plans or documentation of compliance.

Recommendation 5-5:

Limiting Lender Liability

The task force recommends that state legislatures statutorily exempt lenders acquiring property through foreclosure or deeds in lieu of foreclosure liability for LBP-related injuries occurring during the first 8-12 months following acquisition of title to the property, as long as the lender:

Originated the mortgage after the enactment of the legislation and in accordance with underwriting standards proposed in recommendation 5-4;
Implements Essential Maintenance Practices within 90 days after acquiring title;
Continues to follow Essential Maintenance Practices thereafter;
Responds to occupant complaints regarding LBP hazard-related code violations;
Responds to notification of the presence of an EBL child in the same manner required of other owners;
Engages in diligent efforts to sell the property during the 8-12 months following acquisition.

Recommendation 6-1:

Requiring that Health Care Programs Cover Medical and Relocation Costs

The task force recommends that states mandate that Medicaid, other state health care programs and regulated private health insurers cover medical and, where medically necessary, relocation expenses for children injured by LBP hazards.

Recommendation 6-2:

Creating a Last-Resort Fund

The task force recommends that state legislatures create a special fund to compensate reasonable out-of-pocket medical and relocation expenses of children poisoned by LBP hazards, who cannot otherwise obtain such compensation.

Recommendation 6-3:

Providing for Prompt Injunctive Action for Noncompliance

The task force recommends that states establish an action for injunctive relief with LBP hazard control requirements.

Recommendation 6-4:

Establishing Rebuttable Presumptions Where Owners Are Not in Compliance with Required Hazard Controls

The task force recommends that states statutorily clarify liability for owners subject to required LBP maintenance and hazard control requirements who have not implemented any required controls. Such presumptions would shift the burden of proof on specified issues, such as knowledge or causation, to owners.

Recommendation 6-5:

Limiting New Owner Liability

The task force recommends that state legislatures statutorily exempt a bona fide new purchaser of rental property from liability claims asserting LBP-related injuries occurring during the first 90 days after acquiring the title to the property if by the end of the 90-day period the purchaser has implemented Essential Maintenance Practices and if during the 90-day period the purchaser complies with all other applicable LBP hazard control requirements.

Recommendation 6-6:

Establishing a Complete Liability Defense for Lead-Free Units

The task force recommends that state legislatures establish a complete defense to LBP liability for rental property owners who have nonfraudulently obtained a certificate of lead-free status from a licensed inspector.

Recommendation 6-7:

Limiting Liability for Units in Compliance with Health-Protective LBP Hazard Control Requirements

The task force recommends that states that establish an offer of remedial compensation or other alternate compensation systems limit liability for owners of rental properties with LBP who have implemented hazard controls that meet health-protective regulatory requirements, such as statutorily establishing a rebuttable presumption of due care.

Recommendation 6-8:

Creating State Compensation Systems

The task force recommends that state legislatures develop an offer of remedial compensation system, as outlined in the task force report exhibit 6-1, to reduce tort litigation and provide limited remedial compensation for children injured in housing units that are in compliance with requirements of LBP hazard controls.

Recommendation 6-11:

Establishing Certificate Systems

The task force recommends that states that grant liability relief to owners of properties in compliance with LBP maintenance and hazard control standards establish systems for the issuance of Certificates of Lead Hazard Status of specified duration.

Recommendation 6-12:

Clarifying Admissibility of Dust Testing

The task force recommends that states statutorily establish that dust tests performed only by a certified inspector or risk assessor be admissible in court actions.

Recommendation 6-13:

Encouraging Alternative Dispute Resolution

The task force recommends that states take steps to decrease the amount and cost of tort litigation over LBP claims by enacting legislation requiring courts to offer mediation or nonbinding arbitration to resolve such actions whenever possible.

Recommendation 8-2:

Requiring Owner Action When an EBL Child Is Identified in an Assisted Unit

The task force recommends that, for tenant-based assistance (TBA) units occupied by an child with elevated blood-lead levels, administering agencies develop program standards that require a risk assessment, prompt correction of identified hazards and a written notice to the tenant. Alternatively, TBA programs could permit the owner to relocate the household to a comparable unit free of LBP hazards.

Back arrow, return to previous page Environmental Health Publications page