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Lead Paint Legal Issues for Attorneys

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9/12/2016 Notice: Maine has new lead paint regulations that take effect on September 12, 2016. We will update this page to include these new regulations as soon as possible.

Maine Lead Poisoning Control Act 22 M.R.S. §§1314-1329

If the Maine Centers for Disease Control (CDC) determines that an environmental lead hazard exists in any unit in a building, the CDC will:

  1. Post a public notice of the environmental lead hazard
  2. Give notice of the environmental lead hazard to all occupants and the owner
  3. Order the lead hazard to be removed, replaced, or securely and permanently covered within 30 days - this is called an Order to Abate
  • The abatement work must be done in a lead-safe manner by a Maine Department of Environmental Protection certified lead abatement contractor
  • The ordered abatement must be completed within 30 days, unless the Department grants a reasonable extension.

Note: Once a dwelling has been posted for lead and ordered abated, it cannot be re-rented until lead abatement is completed.

If a family with children under 6 years old lives in the dwelling, it may be the additional responsibility of the building owner/landlord to:

  1. Move the family to a lead-safe unit that contains similar accommodations and is in a similar location
  2. Pay the family’s “costs of the relocation, including, but not limited to:
    • Moving expenses.
    • Any use and occupancy charges, including any difference in rent, in excess of the normal monthly rent paid to the owner;
    • The cost of establishing utilities at the substitute dwelling unit, utility usage charges at the vacated unit until the unit is cleared for re-occupancy; and ...
    • ...Any difference in cost between the security deposit/last month’s rent for the affected dwelling and any security deposit/last month’s rent for the substitute dwelling...” DHHS Regulations, 10-144, Ch. 292, § 4(F)(2)(b).

Penalties for violating any provision of the Maine Lead Poisoning Control Act include fines of $500 per violation, per day, per dwelling unit; imprisonment of not more than 6 months; or both.

 

Impacts of lead on Lewiston/Auburn

Our community has the highest rate of childhood lead poisoning in the state. Between 2010 and 2014, an estimated 429 Androscoggin County kids (ages 0-36 months) had blood lead levels at or above 5μg/dL.

Of those 429 kids, approximately 358 lived in Lewiston/Auburn. An estimated 82 older children (ages 36-71 months) were poisoned in the twin cities in that same time period.

Note: There is NO safe level of lead exposure. Even a minor childhood exposure has been shown to have permanent effects because it affects the child’s developing nervous system.

 

Required Lead Notices to Tenants

State Law: Renovation, Repair, and Remodeling 14 M.R.S. §6030-B

If a landlord/owner is repairing, renovating, or remodeling a property that was built before 1978, state law requires notice be provided to the tenants by the landlord/owner 30 days before the work begins.

This notice includes:

  1. Notice of the activity
  2. Information about the risk of a lead hazard

VIOLATION = $500 Fine

Federal Law: Renovation, Repair, and Remodeling 40 C.F.R. 745, Subpart E

If a landlord is renovating, repairing or remodeling a property that was built before 1978, federal law requires that notice be provided to occupants by the contractor not more than 60 days and not less than 7 days before work begins.

This notice includes:

  1. The EPA’s “Renovate Right” pamphlet
  2. A description of the general nature and locations of the activities
  3. The expected starting and ending dates

A warning notice about the lead hazard must also be posted in the primary language of the occupants.

VIOLATION: Constitutes violation of 15 U.S.C. § 2689 and/or 15 U.S.C. § 2614 with the penalties set forth at 15 U.S.C. § 2615.

  • CRIMINAL: In addition to civil penalty, for knowing and willful violation, a fine of not more than $25,000 per day of violation, not more than 1 year imprisonment or both.
  • CIVIL: Up to $25,000 per day of violation.

Lead Abatement 06-096 C.M.R. Ch. 424, §§ 6(B)

Lead abatement must be done by a Maine certified lead abatement contractor. State law requires the contractor to give the tenants notice 5 days before the work begins. The notice may be posted on 8.5” x 11” signs at all entrances and in common areas or individual notice to tenants.

This notice includes:

  1. Dates of work
  2. Hours of work
  3. Work Site
  4. Alternative Entrances/Exits

VIOLATIONS (38 M.R.S. §349):

  • CRIMINAL = not less than $2500 - not more than $25,000 per day violation exists. It is considered to be a Class E crime.
  • CIVIL = not less than $100 - not more than $10,000 per day violation exists payable to the state of Maine

Lead Disclosure Statement 42 U.S.C. § 4852(d) & 40 C.F.R. 745.113

When leasing a unit in a pre-1978 building, the landlord/owner must:

  1. Provide the “Protect Your Family from Lead in Your Home” EPA Pamphlet
  2. Provide a written statement re: lead hazards in the language of the lease
  3. Disclose known lead hazards or state lack of knowledge
  4. Provide any prior reports regarding lead based paint or lead hazards
  5. Obtain a written acknowledgment from the lessee that the information was received
  6. Retain copies of documents for 3 years

VIOLATION: Up to $16,000 per violation as set forth at 24 CFR 30.65

 

RRP Contactors

Anytime a landlord engages in construction activities in a house built before 1978 that disturb more than 6ft2 of interior paint per room or 20ft2 of exterior paint, they:

  • Must be an EPA certified Renovation, Repair and Painting (RRP) contractor, or
  • Must hire an RRP contractor for the job.

Failure to do so violates federal regulations setting forth lead-safe work practice standards.

If the landlord hires an EPA certified RRP contractor, the contractor must give the landlord/owner the same notice that will be provided to the tenants.

 

Economic Effects of Lead

Lost Income

In her paper, An Economic Cost Assessment of Environmentally Related Childhood Diseases in Maine, former University of Maine Adjunct Professor of Economics Mary E. Davis calculated that the annual economic cost of lead poisoning in Maine children is more than $268 million. This was calculated based on how the loss of IQ points affects lifetime earnings. Her calculations used the average national lead poisoning level of 1.9 ug/dL. However, many children in Lewiston-Auburn are testing above 10 ug/dL. Estimates from various studies have theorized that a 10 ug/ dL poisoning accounts for a drop in IQ of 5-9 points.

Special Education Costs

In the Twin Cities, the special education costs are approximately $14,748/student. If 100 lead-poisoned children in Lewiston-Auburn need special education as a result of their exposure, it would cost an additional $1,474,800 per year just for those children. Statewide, if 5% of neurological disorders were attributable to lead, it would mean >$15 million in additional state special education spending annually, which could be avoided by simply preventing lead poisoning in the first place.chart showing return on investment for owner of 23,937% when $878 spent fixing lead in the HUD grant process avoids an average lifetime loss of earnings of $19,321.70 and special education costs of $191,724 for grades K through 12

Cost-Benefit Analysis

This table shows a rough cost-benefit analysis for each unit needing lead paint treatment, calculated as if 2 at-risk children were living in the household, assuming a 10% cash match by an owner and assuming the unit qualifies for HUD lead hazard control grant funds.

 

 

Funding Sources: Aid for Landlords

Lewiston /Auburn was granted $3,395,159 by U.S. Housing and Urban Development (HUD) to help control lead hazards in housing units serving low-income Mainers. To qualify for this funding, the property must meet the following requirement

  • Located within targeted census tracts in L-A.
  • Constructed prior to 1978.
  • One of the following:

o   Child under 6 years old lives there;

o   Rentals: Owner agrees to provide priority to families with children under 6 for the next three years; or

o   Owner-occupied: Pregnant woman lives there, or child under 6 spends a significant amount of time there.

  • Owner or tenant meets HUD income eligibility requirements.
  • Property has at least one bedroom.

For more information on the HUD grant, contact Community Concepts, Inc. MaineHousing also offers a 0%, deferred, forgivable loan interest free with no monthly payments. For more information contact MaineHousing.

 

Legal Referrals

Our services are free to all low-income families. When the parents of your patients learn that their children have elevated blood lead levels, you can tell them to call us for help understanding their legal rights. For more information, visit KIDS LEGAL Can Help.

Updated October, 2016