Header graphic for print
Real Property & Development Review

Getting the Lead Out

Posted in Environmental

As originally published in the Daily Journal of Commerce

Lead’s adverse effects on people, particularly young children, have been reasonably well understood for decades.

Children afflicted by lead poisoning can suffer permanent brain and nervous system damage. This can lead to a lower IQ, anemia, slower growth, and behavior, learning and hearing problems.

Afflicted adults can suffer nervous system effects, cardiovascular effects, increased blood pressure and incidence of hypertension, decreased kidney function and reproductive problems. Pregnant women with elevated lead levels are at greater risk of miscarriage, reduced fetus growth and premature birth.

Because of this, lead is highly regulated. The Occupational Safety and Health Administration limits exposure in workplaces. In homes and multifamily residences, disclosures are required in transactions involving spaces where lead-based paint may be present, and strict standards exist for renovations and repairs that may disturb lead-based paint.

Lead is regulated as a pollutant under the Clean Water Act and as a common and toxic pollutant under the Clean Air Act. The Safe Drinking Water Act limits lead in drinking water and the 2008 Consumer Product Safety Improvement Act regulates lead levels in children’s products. Lead also is regulated as a hazardous waste and as a hazardous substance, often driving cleanup decisions at contaminated properties. The basic purpose of all these regulations is to prevent harmful exposures to lead.

Regulatory agencies have hardly been shy about taking enforcement actions when businesses fail to meet applicable standards, drawing further attention to the importance of preventing lead poisoning. For example, the lead-based paint Renovation, Repair and Painting rule is particularly sensitive because it prevents unsafe exposures to lead in homes.

Last fall, the Environmental Protection Agency published summaries of enforcement actions against violators of the RRP rule. Most of the companies involved were small and the fines were only a few thousand dollars.

However, the EPA filed an administrative complaint against Collegiate Entrepreneurs Inc., a business running collegiate painting services in the Northeast, alleging 101 violations of the RRP rule and seeking penalties of up to $37,500 per violation. The initial civil penalty calculated under EPA’s penalty policy and provided to Collegiate Entrepreneurs for settlement purposes was an astounding $863,100.

Given all of this, is it possible that we’ve missed something and that more should be done to prevent lead poisoning, especially in children? It turns out the answer may be “Yes.”

In a recent Mother Jones magazine article, Kevin Drum reviewed several recent econometric studies demonstrating connections between the adverse health effects of lead exposures, particularly to boys, and violent crime rates. In short, lead poisoning increases crime rates.

Drum also discussed several recent neurologic studies showing that lead has perverse health effects at blood concentrations once thought safe. He then makes the case that further reductions of lead, particularly in urban soils still contaminated from past use of leaded gasoline, will yield economic benefits worth 10 times the cost of additional cleanup – primarily in the form of cognitive improvements leading to higher lifetime productivity and additional reductions in crime rates.

More lead remediation starts to look like a no-brainer, right? In practice, however, the additional work should be considered within the context of our existing legal frameworks and, if existing legal frameworks are found wanting, new ones should be developed and adopted if additional lead remediation is determined to be a societal priority.

Currently, the residential cleanup standard for lead is no more than 400 parts per million of residual lead in soil. This is intended to roughly correlate with a blood lead level of 5 to 10 µg/dL, which has been considered safe but may now be in question.

Suppose that by reducing the soil standard to 100 ppm, significant health and economic benefits can be achieved. Who will pay for the additional cleanup needed and how can the benefits of additional cleanup be shared equitably across all social and economic strata of our society?

Under existing laws and regulations, our stated preference is “polluter pays.” For properties with distinct sources of lead that may be contemplating a conversion to residential use – such as a former industrial site – a new cleanup standard for lead may not be too disruptive. Assuming that adequate lead time exists, the cost of complying with new standards could be factored into the development process and the specific economics of the planned development.

For sites known to be contaminated with lead and previously remediated to existing standards, a difficult question exists: Should they be reopened for further cleanup so that more stringent standards are met? Sites cleaned to less stringent industrial standards (because children aren’t at risk), probably wouldn’t require further work. However, for sites cleaned to residential standards, reopening closed sites for more cleanup would be a distinct possibility.

Finally, in practice, “current owner pays” is a frequent regulatory outcome, especially for historic and diffuse sources of pollutants, such as lead dispersed to soils from vehicles burning leaded gasoline.

More stringent standards for single-family residents if cleanup costs are absorbed privately will separate families who can afford to pay for cleanup from those who cannot. For tenants in multifamily housing, landlords may be better able to finance remediation costs privately, but those costs will ultimately be passed on to tenants, likely harming those who can least afford to pay.

In commercial and other types of private properties open to the public and requiring cleanup, private costs would again filter out and be spread among property owners, tenants and customers – likely according to lease provisions and other contractual arrangements never intended to deal with such costs.

For the reasons noted, existing mechanisms for cost allocation and cleanup funding are not up to the task of achieving just and equitable outcomes if lead cleanup standards are tightened. Thus, new cost allocation and funding mechanisms should be developed along with any consideration of more stringent cleanup standards for lead.