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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

KRC Opposes bill cutting off rights of injured to sue for lead poisoning  Posted: January 27, 2004

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail: fitzKRC@aol.com

www.kyrc.org

January 27, 2004

Hon. Reginald Meeks

General Assembly

Frankfort Ky. 40601

Dear Rep. Meeks and other sponsors of HB 349:

I am writing to express the grave concerns of KRC with the proposed HB 349. The bill allows the certification of properties as “lead-free” or “lead-safe” without requiring that the properties actually be demonstrated to be free from lead or lead hazards. Additionally, in direct violation of the state constitution, the bill seeks to cut off the rights of children and others injured by exposure to lead to sue for damages suffered. KRC respectfully urges that the bill be withdrawn, since it is so flawed that it would be impossible to amend. KRC has these concerns with the bill, listed section and subsection:

1. The term “affected property” in Section 1(9) is internally inconsistent.

Affected property” is defined in Section 1(9) to be “dwellings” or “dwelling units that were constructed before 1950.” Yet section 2(3)(a) allows an affected property to be certified as “lead-free” if it is “constructed after 1978” – an impossibility since by definition an “affected property” was constructed pre-1950.

2 The use of “affected property” to mean dwelling units will be misleading to the public.

The bill defines “affected property” as “dwellings,” and allows for certification (by whom it is unclear) of an “affected property” as being “lead-free” and “lead-safe.” The typical meaning of the term “property” includes not merely a structure but also the land on which the dwelling rests. To the purchaser or renter of a dwelling, a certification that the “affected property” is lead-free or lead-safe will be interpreted to include the dwelling as well as soils and could place vulnerable persons at risk where the soils remain contaminated, since this bill does not begin to address soil contamination and possible inhalation or ingestion exposure from soil and dust. I will address below the lack of adequate standards and testing for the certification, but the use of the term “property” when all that is being certified is the dwelling itself, is potentially very misleading.

3. The bill allows certification of the status of properties as “lead-free” and “lead-safe” but fails to make clear who is making the certification and to whom the certification is made, without actually having to test or demonstrate in all cases that the dwelling is free from lead or that the lead has been reduced to “safe” levels, and without any validation or review by a public agency that the reported certification is accurate.

The bill creates two categories of dwellings – “lead-safe” and “lead-free” yet fails to identify who is making the certifications – whether the certification is a self-certification (and if so, what mechanisms of accountability exist for the self-certification), or whether the certification is bestowed by the state agency. As with the inspections section, it is unclear who is responsible for the certification, and to whom the certification is being made. Obviously, the certification is intended to represent to someone, probably a prospective tenant or home purchaser, the status of a home with respect to lead risks, yet the certification, if a self-certification, is not validated or reviewed.

Section 2(3)(a) allows a dwelling to be certified as a “lead-free property” if the dwelling is constructed after 1978, regardless of whether it is in fact free from lead. While the use of lead in sales of new paint was prohibited after a date certain, a post-1978 home may in fact have been painted with leaded paint purchased before the date of removal of lead from paints, or may have been constructed with salvaged doors, windows or other painted surfaces containing leaded pigments. No certification as “lead-free” should be made absent testing to prove the claim.

Additionally, if the property had prior construction and there are elevated lead levels in soils, the dwelling may have significant interior lead levels due to dust and soil from the surrounding property.

As an alternative to (3)(a), Section 2(3)(b)1 allows a certification of “lead-free property” if testing of “all interior surfaces” shows the property to be “lead-free”, but it is unclear whether it is intended that dust from exterior soil lead contamination be tested, since (3)(b)2 speaks only to painted surfaces.

With respect to (b)(2, the “lead-free” certification is available if the chipping, peeling or flaking exterior surfaces have been “restored with a nonlead-based substance.” This subsection does not require that the surfaces have been painted with lead-based at first, nor does it require that the lead-based exterior paint be removed, so that a home with exterior lead-based paint could be spot painted with non-lead paint, receive certification as “lead-free,” even though it was not, and then future chipping, peeling or flaking could present an undisclosed risk.

4. The certification as “lead-safe” is also potentially inaccurate.

Section 2(4) requires a property to be certified as “lead-safe” if treatments to reduce lead-based paint hazards have been completed. This section is of concern for a number of reasons – first, since lead paint is not the only source of lead hazards in or outside of a home, a certification that one has made a dwelling “lead-safe” merely by reducing lead paint hazards is potentially inaccurate and misleading. Further, the section allows a certification of “lead-safe” merely by reducing the hazard rather than requiring that the dwelling actually be made “safe.” There is no therapeutic level of human exposure to lead, and the only way to make a property “safe” from lead hazard is to eliminate the sources and exposure. Mere reduction of hazards does not necessarily eliminate the hazards or make a home “safe,” nor does reduction to current regulatory levels, for while the current health standard is 10 ug/dl for blood lead, neurological damage has been documented in children at blood lead levels as low as 4 ug/dl, correlating to soil lead levels substantially lower than the 400 mg/kg threshold used by EPA for residential soils.

5. The provisions addressing lead abatement of rental property are problematic.

Section 2(5), (6), and (7) involve the state in matters of landlord-tenant law usually reserved to individual leases and to the applicable landlord-tenant law. Section 2(5) appears to allow the landlord to direct lead abatement work even while tenants are in the home as long as “reasonable efforts” are made to exclude them. That same section appears to empower the landlord to eject “at risk persons” from the property during repairs (at risk persons being defined as those living in pre-1945 dwellings where high incidence of lead poisoning may be reasonably expected or reported). Section 2(6) demands that the tenant provide access to the owner at reasonable times to perform “any work required”, but does not limit that “work required” to lead abatement work. Section 2(7) requires payment of “reasonable expenses” that the tenant incurs if required to relocate, but does not require that the expenses be prepaid. For fixed income tenants, advancing the costs of lodging and meals during a forced ejectment is prohibitive.

The troubling language in this subsection is the language of Section 2(8) and (9), which purport to immunize the owner from any liability for lead poisoning suffered if the tenant either refuses to vacate or refuses access to the property. It is the obligation of the landlord to provide habitable rental units, free from lead hazards. A refusal by a tenant to allow access for repairs or to vacate is properly addressed in the lease as a standard term and enforced by injunction, not by cutting off access to courts for damages suffered. The state constitution protects the rights of all injured persons to seek redress for injuries suffered and the legislature is not competent to extinguish these rights.

6. The inspection provisions are vague and without substance.

Section 2(10) requires “inspection” of affected properties but does not say who conducts the inspections or for what purpose the inspections are to be conducted. It is also unclear whether the inspections are to be performed by qualified persons and whether the results of the inspection are recorded or reported.

7. Section 5 unlawfully extinguishes rights of injured parties to recover damages for harm caused them by exposure to lead.

The most troubling aspects of the bill are in Section 5. Section 5(1)(a) makes a property owner immune from liability for ingestion of lead “contained in an affected property” if the property has been certified as lead-free or lead-safe.

Thus, without having to actually prove that the property is free from lead or that lead levels are safe, anyone bearing a “certification” is immune from liability. This is both unconstitutional under state law, but also not responsible public policy, since if a party is injured from lead exposure within a dwelling it is obvious that the certification is inaccurate. If property owners wish to reduce their liability, they must reduce and eliminate the risks, not seek to hide behind legislative enactments where risks remain.

The second troubling concept is that if the property owner makes a “qualified offer,” regardless of whether the offer is reasonable or not or has been accepted or not, they are immunized from suit. This amounts to a forced arbitration that cannot be imposed since it extinguishes jural rights guaranteed by state law.

In closing, HB 349 is not fair, nor protective of the public (particularly at-risk children, who lack by law the capacity to make informed judgments concerning risks). Lead exposure through inhalation and ingestion pathways comes from numerous sources – interior and exterior paint, soil, indoor dust from outdoor soil contamination, and food exposure, must be addressed through proper remediation, not by creating processes to convey certifications on dwellings as “lead-free” and “lead-safe” when they may be neither, and by seeking to extinguish rights of injured parties when lead exposure occurs.

Thank you for your consideration of these grave concerns.

Tom FitzGerald

Director

cc: Reps. Marzian, L. Clark, Graham, Horlander, Jenkins, Miller, Riner

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