New York City’s housing has a lead paint problem — still. In the first half of the 20th century, lead was marketed as a premium additive for more durable and intensely pigmented paint. This was despite records of abdominal pain, complications in reproduction, and neurological damage in workers in lead-processing industries that date back to the Industrial Revolution, or Ancient Rome. For children, the metal’s neurotoxic properties were soon to become a known threat to developmental health. Residential use of lead paint in New York proliferated until a citywide ban in 1960, almost 20 years before a federal law followed suit.
But 70 percent of the city’s current housing stock was built in the 1950s or before. And in its 2021 fiscal year, the Department of Housing Preservation and Development reported nearly 10,000 lead-based, paint-related violations and fielded over 16,000 lead exposure-related tenant complaints. Beyond the home, an onslaught of toxicity reports warn against gardening in urban soil, playing with toys, and going to school, despite some new promise that it will soon all disappear. We know how lead got here; why can’t we get it to go away?
Efforts to end childhood lead poisoning in the city have been tremendously effective. Since the most recent package of lead legislation passed in 2004, a multi-agency-led push toward building inspections, blood testing, and on-site remediation of easy-to-ingest lead paint chips and dust has resulted in a 92 percent decrease in elevated blood lead levels in children under six. But thousands of children are still found to have elevated lead levels each year, with remaining lead paint hotspots largely consolidated among poor and non-white communities, an indicator that progress has followed an unsteady trajectory that leaves already-vulnerable populations at a disproportionate risk.
Matthew Chachère has been at the heart of the tenant-led fight against childhood lead poisoning for over three decades. An attorney with the Northern Manhattan Improvement Corporation, he represents the New York City Coalition to End Lead Poisoning (NYCCELP), a coalition including housing advocates, tenants’ rights advocates, and environmental groups, founded in the early 1980s by parents of lead poisoned children and public health advocates. An emphatic storyteller, Chachère unfurled the city’s long and winding legislative response to the dangers of lead paint over two conversations, condensed below. From tenant-landlord relations under English common law to the modern metrics rewriting at which threshold it is OK for young bodies to contain poison, his account leads us closer to understanding why, despite years of knowing what to do and where to do it, the lead paint problem persists.
A portrait of a public policy’s successes and regressions in the longue durée reveals trends that transcend lead alone. It exposes how an airtight piece of legislation can be undercut by desultory enforcement. It reminds us that progress is nonlinear and benefits spread unevenly. And it explicitly asks: Who among us — landlord, legislator, civil servant, tenant — is responsible for ensuring a healthy home? – DD
What brought you to the front lines of protecting New Yorkers against lead paint poisoning?
Back in the early 1990s, a friend passed along a news article about sandblasting of old lead paint on the Williamsburg Bridge that was causing lead dust and particles to rain down onto then-low-income communities on either side of the bridge. I brought a successful lawsuit on behalf of a number of community groups to enjoin the City of New York from further work until proper environmental reviews and protocols were in place. That effort brought me into a close professional partnership with Lucy Billings (now a New York Supreme Court Justice) who recruited me to work with her on a class action lawsuit on behalf of the New York City Coalition to End Lead Poisoning (NYCCELP), seeking better enforcement of the lead poisoning prevention laws then on the books.
New York City outlawed the residential use of lead paint in 1960, eighteen years before a national ban. How else did the City respond to the problem of existing lead paint?
New York City passed one of the first primary prevention laws in the country in 1982. Local Law 1 was a very straightforward, brief statute. In essence, it provided that there could be no lead paint at all in a rental apartment in a multiple rental dwelling (which is three or more units) where a child under the age of seven resided. It’s not clear if that’s exactly what the City Council intended, but that’s what the courts ultimately interpreted the statute’s language to mean: There could not be one molecule of lead-based paint on any painted surface in an apartment where a child under seven resided, period.
At first, the City did essentially no enforcement at all, so the landlords paid no attention. Indeed, in the first year Local Law 1 of 1982 was in effect, the City placed just 13 violations for lead paint found in apartments. This was for all of New York City!
But things came to a head in 1999. The City was held to be in contempt of court no less than four times in the 1990s class action NYCCELP v. Koch. It got to the point, under Mayor Giuliani, where the judge threatened to put the commissioner of the Department of Housing Preservation and Development (HPD) in jail if he didn’t start to comply within 30 days.
The other big pressure point was a case that went all the way to New York’s highest court, the Court of Appeals in Albany, called Juarez v. Wavecrest Management. This was a lawsuit involving a child’s lead poisoning, and the landlord’s defense was: “I had no obligation to find and remove the lead-based paint hazards in this apartment, unless the City came in and inspected and found violations and ordered me to remove them. And until that happened, I had no responsibility.” Essentially, the landlord’s defense was: “How could I possibly know?”
Part of the principle at work here was that under English common law, if the landlord rents a property to somebody, they are no longer “in possession.” Traditionally, the landlord had no notice of the conditions within a property once it was rented; they couldn’t just walk into the apartment and inspect it, because the tenant has exclusive possession of the apartment, under the lease. But in the Juarez v. Wavecrest Management case, the Court of Appeals in 1996 ruled that Local Law 1 placed specific obligation on owners to make their property safe, and, coupled with other parts of New York City’s housing code which give landlords a right to enter their tenants’ property at reasonable times to inspect to make sure the property is up to code, overcame the traditional common law defense of lack of notice. Essentially, the Court said, “if the landlord knows there’s a child under the age of seven, they are legally presumed to know, or should have known, about the lead hazards in the apartment.”
Wavecrest was a personal injury case brought by the child. It dramatically changed the dynamic in personal injury cases: From then on, landlords were basically in a situation where if a kid got poisoned, they were liable, and the only thing that was left to litigate was the amount of monetary damages.
So the landlords were complaining to City Council, “Oh my God, we’re getting sued left and right because we’re poisoning children.” And the Mayor was complaining to City Council, “Oh my God, the Court’s threatening to put our commissioner in jail.” So the City Council ganged up with Mayor Giuliani, revoked Local Law 1 of 1982, and replaced it with Local Law 38 of 1999, which tremendously scaled back the responsibilities of landlords and the responsibilities of the City. And, as a result, the number of violations went way down.
But Local Law 38 isn’t on the books today either. What was its fate? And how did tenant advocates respond to this step backward?
Long story short, NYCCELP and others brought another lawsuit under the State Environmental Quality Review Act (SEQRA), claiming that the City Council illegally enacted Local Law 38, in that it failed to prepare an environmental impact statement prior to voting for the new law. We argued that under SEQRA, the term “environment” also includes people’s homes; since we spend about 80 to 90 percent of our time indoors, the indoor environment can have profound impacts. We fought that all the way to the Court of Appeals in Albany. In the summer of 2003, the court annulled Local Law 38 and reinstated Local Law 1 of 1982. At that point, advocates had been working for years on crafting a very comprehensive law that we hoped would fix a lot of the issues around Local Law 1 of 1982’s poor enforcement and compliance. We also did an enormous amount of community and political organizing to support this effort. As a result, the City Council overwhelmingly voted to enact our proposal which was introduced by then-Councilmember Bill Perkins. It became Local Law 1 of 2004.
Local Law 1 of 2004 was a big compromise. It told landlords that you don’t necessarily have to remove all the lead paint, but if you don’t, you must make sure that any lead paint in your property is maintained in a condition that can never poison a child. And if it does, then you will unquestionably be liable.
There was huge opposition to the idea of doing complete lead abatement. It was argued by the real estate lobby that such an effort would bankrupt the entire industry. But not all lead paint is immediately hazardous. To pose a risk, the lead has to be in some manner bioavailable to the child: the paint is peeling, chalking, it’s on deteriorated plaster, it’s on a friction surface of a door or window where moving parts abrade and create lead dust. So, perhaps, with proper monitoring and management, not all lead paint needs to be removed. It was also argued that unless complete abatement is done using appropriate controls and work practices, the lead dust created by the abatement work might have the unintended consequences of poisoning children.
Thus, the law obligates landlords to inspect rental dwellings where young children reside at least once a year, and more often as needed, to make sure there are no lead-based paint hazards — which are defined as anything that can cause the ingestion of lead from painted surfaces or the resulting dust. In turn, landlords are under an affirmative obligation to find out if there are children under age six in the apartment for ten or more hours a week. They must prepare written reports of each inspection for lead-based paint hazards, provide the tenants with the written report, keep the report for ten years, and be able to provide it to the City on demand.
Part of the thinking behind this approach — to codify the landlords’ responsibility to inspect — was the acknowledgement that at any given time, there are an estimated 300,000 units of pre-1960 housing in New York City, presumably with some lead-based paint, where children under age six reside. There would be no way that the City itself — with perhaps 250 code inspectors — could regularly check on so many dwellings.
Local Law 1 of 2004 also imposed a number of specific mandates pertaining to enforcement. For example, it required that whenever HPD entered an apartment for an inspection of any sort — such as for a leaky pipe, an electrical problem — the inspector must also inspect for lead if a child under age six resides there. It also required that whenever a complaint was received of a housing condition on the 311 hotline, the operator must ask if there is a child under age six and any damaged paint in the apartment, and if the tenant answers affirmatively, HPD must conduct a lead inspection. Measures like this resulted in a major increase in lead paint violations cited by HPD.
How is the City enforcing Local Law 1? What happens, for example, to landlords who fail to abate lead hazards?
The reality is that the City needs to take a much more rigorous stance towards enforcement. Nearly two decades after Local Law 1 came into effect, the City should no longer be finding peeling lead-based paint. If it does, it’s a strong indicator that the landlord has not been doing their job.
Advocates thought that as a result of the many specific mandates imposed on HPD, in its first few years, Local Law 1 of 2004 would bring about an increase of lead-based paint violations. But then they expected violations to decrease as landlords got the message that they needed to remove lead hazards before the City cited them. Unfortunately, that hasn’t happened. It’s very frustrating that when the City Council conducts oversight hearings, HPD will proclaim, “We’re doing a great job, we’ve written more violations than ever.” I say that shows something is wrong here. Because nearly two decades after this law’s enactment, those numbers should be going down. If the City is still finding so many landlords who have peeling lead paint, clearly too many landlords have not gotten the message that they need to inspect their properties.
Local Law 1 of 2004 made the failure to conduct the regular self-inspections the most serious violation of all, with violators susceptible to imprisonment for up to six months. Yet until November of 2019, the City had issued precisely two violations against landlords for not doing inspections — in fifteen years of this law being in effect! And both of those violations happened to be in cases where I was involved. Clearly, I couldn’t be the only one enforcing this provision (particularly as I planned to retire soon). So the advocates persuaded the City Council to enact some changes in the law, among them a new mandate that the City audit at least 200 buildings a year for compliance with the self-inspection requirement. Once the City began these audits, it discovered that most of the landlords it audited were not doing the self-inspections, or at least had no records of them. No surprise to me — if the City never enforced this provision, landlords were going to ignore it, and we’d still have children living in homes with hazardous lead conditions.
People often think that when you get cited for a violation by HPD, it means the problem will be remedied and that fines will be collected. But it’s not at all like when you get a parking violation; if you get a ticket and don’t pay it, the fine starts going up and they eventually boot or tow your car. HPD or the tenant have to take the landlord to court to collect the fine. HPD have precious few resources to do this, and even when they do, they generally negotiate the fines down to pennies on the dollar. The other piece of the equation is that if HPD does the lead abatement work because the landlord didn’t do it, then HPD places a lien on the property. And eventually the City can collect on that lien. It’s not like we’re out of pocket as taxpayers on this.
What does it actually look like to remediate lead paint today, from preliminary inspections to certified abatements?
There are two scenarios that trigger a City inspection of a dwelling for lead.
The trigger for the Department of Health and Mental Hygiene (DHMH) is a report of a child with an elevated blood level. State law requires that health care providers test children for lead at ages one and two, and all blood lead tests are sent to a central database that’s farmed out to local health departments. If DHMH receives a report of a child with an elevated blood lead level, it must send out a public health sanitarian to inspect. So, the child gets tested, the health care provider reports it to DHMH, and DHMH sends an inspector to every place the child is spending significant time — grandma’s house, a daycare center — not just their home. Wherever DHMH finds sources of lead in the child’s regular environment, it will issue a Commissioner’s Order to Abate. There are very short timeframes for compliance, since this involves a child who is already lead poisoned. Technically, the building owner has just five days to abate. If they fail to do so, DHMH must refer the matter to HPD. HPD is then supposed to complete the abatement in 18 days. The whole process should be over in about 32 days. Does that actually happen in reality? I don’t think so. But I also don’t think it should take a year either.
Now, what a landlord must do to comply with the law is a somewhat nuanced issue. Peeling paint is the most basic code violation under Local Law 1 of 2004. In addition, at vacancy the owner must permanently remove or cover all the lead-based paint on the friction surfaces. However, there’s a distinction between what is a code violation and what is an owner’s responsibility. Local Law 1 of 2004 specifically says that friction surfaces and peeling paint are code violations, but that is far from the end of owners’ responsibilities. Landlords must assure that there are no lead-based paint hazards, which are a larger set of conditions that include anything that could potentially poison a child: a window sill with lead paint on it that a teething child might chew on, or a piece of painted trim that can be struck by a child’s tricycle and chip. If the wall is intact and there are no water leaks behind it and the plaster is stable, it’s probably not going to do anything. But it can become a dangerous condition; landlords can’t wait until it becomes a violation, they need to be on top of it.
What are the rates of lead poisoning in the city today?
There was a time when the federal Center for Disease Control defined lead poisoning as a certain number, anything greater than X micrograms per deciliter of blood was considered lead poisoning; that figure was originally 60, then it was 35, then it was 15. And at some point within the last 15 years, the CDC finally admitted that there is no safe level below which it doesn’t do damage. So now we use the term “action level,” which is adjusted by the CDC every ten years or so, based solely on the percentages of children whose level is greater than that. Just last fall, that level was lowered from 5 µg/dL to 3.5 µg/dL.
When Local Law 1 of 2004 was enacted, DHMH intervention was mandated only when a child had a level of 15 µg/dL. That was changed in 2019 to 5 µg/dL, which of course resulted in a significant increase in cases. And it’s going to go up again in 2022 because we petitioned the Board of Health to adopt a 3.5 µg/dL standard to trigger DHMH interventions. But I just want to be clear: Everybody has some lead in them and it’s never good for you at any level. The 3.5 µg/dL is not really a health-based standard, it’s a statistical one.
The good news is that since Local Law 1 came into effect in late 2004, the number and rate of children with blood lead levels of 5 µg/dL has plummeted more than ten-fold. The bad news, however, is that Local Law 1 set a goal of ending lead poisoning by 2010, and we’ve yet to reach that goal.
But the important thing to recognize is focusing in on blood lead levels is what is known as secondary prevention. You’re responding to the issue after the child has already been lead poisoned. It’s not trying to prevent the exposure in the first place. And it’s been widely criticized. We’ve essentially been using children as Geiger counters for lead. Kid’s sick, he’s got lead, there must be lead in the environment.
It’s much easier to just test the apartment for lead than use the child to test for lead. And since the damage from lead is irreparable, it makes no sense to guide our public policy for dealing with this neurotoxin in an environment by waiting until children have irreparable neurocognitive injuries before we go after the housing. Secondary prevention has been around in one form or another since 1960. That remains the policy in most of New York State — outside of New York City, Rochester, and Syracuse — and it remains the policy in most of the United States. I continue to call it a barbaric way of dealing with this, because it’s too late, once the kid’s got an elevated blood level, to restore what’s been lost. Whatever damage has been done is going to be there forever. And the screening rates of children are not particularly good. New York State is one of the few jurisdictions that has mandated screening of children.
Who is testing positive for elevated blood lead levels? Where are they?
Not surprisingly, there is a very high correlation between lead poisoning and race and poverty in New York City and in New York State. In 2020, DHMH reported that 82 percent of New York City children with higher blood lead levels were children of color, and 67 percent resided in high poverty neighborhoods. It’s the reality in our society that people of color are overrepresented in the low-income segments of the population, and as a result are more likely to dwell in substandard or less well-maintained housing.
There’s what we call the lead belt, which goes across central Brooklyn and the southern Bronx, that is where much of the lead poisoning occurs. When I started organizing around other health and housing issues, particularly around asthma triggers, we saw the asthma belt is just the same. And the pesticide exposure belt is just the same. And the cockroach belt is the same. These things are all related.
You’re saying we’re working off of statistics, not actual measures of health. Knowing that, what is the end game here? Is it a city with no childhood lead poisoning?
Are we ever going to get to zero? I think the answer is no. In part because zero is an impossibly difficult number to achieve, because we don’t know where zero is. A “safe” level of lead in the blood has not yet been identified.
We’ve reduced the number of lead poisonings in New York City tremendously. How much of that has to do with this law? And how much of it would improve with better enforcement? It’s kind of hard to tell. How much of this could we ascribe to the fact that New York City is being rapidly gentrified and older properties are being torn down or renovated (and poor people are being displaced), as compared to some rust belt cities, like Utica, New York? I don’t know. It appears that the lead poisoning rates nationally and statewide have gone down every year as a result of some of those very same factors.
What we do know is that the rates in New York City are half of what they are in Rochester, which has had a lead paint prevention law on the books since the mid 2000s. And those in turn are half of what they are in Buffalo, which really has had no prevention law at all. I’d like to ascribe it to Local Law 1 of 2004, but certainly, the fact that the City is still finding lots of peeling lead paint that should have been prevented by diligent landlords cannot be a good thing. No one would argue that this is a safe situation.