Under Massachusetts law, landlords cannot have children under the age of six living in an apartment with lead hazards or unknown lead.
Massachusetts regulators and representatives have independently proposed changes to Massachusetts’ lead laws. If all of the proposed changes pass, deleading costs would decrease by 40%, lead poisoning reports would increase by a factor of ten, and both deleading tax credits and discrimination fines would double.
There is no known benefit to lead in the body. It is so toxic to children that 0.000000007 ounces in a quart of blood will impair a child’s development, according to the CDC. The CDC limit is usually expressed as 5 µg/dL (micrograms per deciliter). For a typical child, this equates to a lead particle much smaller than a grain of sand.
Proposed Regulatory Changes
The Executive Office of Health and Human Services, Department of Public Health proposed new regulations on July 13, 2016. These regulations would do six things.
First, the regulations would lower the blood lead level at which a child is considered “poisoned” from 25 µg/dL to 10 µg/dL. This is still above the CDC guidelines. This will increase the frequency with which inspectors must enter apartments and children must receive treatment.
Second, the regulations would lower the blood lead “level of concern” from 15 µg/dL to 5 µg/dL. This would enable the Childhood Lead Poisoning Prevention Program to offer voluntary services to more clients.
Third, any child at or above the “level of concern” would receive more precise testing to be sure that they aren’t actually poisoned.
Fourth, the regulations would redefine “accessible, mouthable surfaces” to exclude wall corners, door casings, window casings, and chair rails. These surfaces could remain lead paint as long as they were intact. Window sills, door jambs, stair handrails, stair treads, and risers would still be considered accessible, mouthable.
Fifth, regulations on encapsulants would be substantially deleted in favor of regulations put forth by the American Society of Testing and Materials.
Sixth, CLPPP would be granted leeway to set its own pre- and post-compliance inspection processes.
Overall, these proposed regulations are expected to decrease deleading costs by 40%, while increasing the number of lead poisoning cases by ten times.
Proposed Legislative Changes
MassLandlords submitted a blog article as testimony concerning the new regulations. In it, we were critical of the changes because they didn’t come from the legislature, which must approve and budget for the changes, especially with respect to the deleading credit. We may have had an impact.
On January 13, 2017, Jeffrey Sánchez filed House No. 1626, which repeats some of the proposed regulatory changes but also increases the deleading credit (while also increasing the penalties).
First, House 1626 lowers the blood lead level for both poisoning and “concern,” as explained above.
Second, House 1626 doubles the deleading credit from $1,500 to $3,000, and doubles the credit for a letter of interim control from $500 to $1,000.
Third, House 1626 increases the discrimination fine from $10,000 to $20,000 for the first offense, and from $25,000 to $35,000 for the second offense in five years.
Presumably the legislature will also provide funding for the regulatory agency as it sees fit.
Read the bill for yourself.
Lead Paint Catch-22
Massachusetts law places landlords in a Catch-22. You cannot discriminate against children, but you cannot have children living in an apartment with lead hazards or unknown lead. You must delead. This is why the deleading credit is essential. Lead is a problem inherited from past generations. Society as a whole must bear the cost, not just private landlords.
Is this good policy?
Overall, the regulations and bill combined probably move us in the right direction. The regulations alone would be an unfunded mandate, but the bill would provide at least a little extra funding for deleading. The deleading credit is still inadequate, and hasn’t kept pace with inflation. See our article from last September, “Proposed Lead Paint Regulations are Flaky.”
These regulations are expected to take effect soon. We will keep you posted.