Summary of Lead Bill

170131 Summary of Lead Bill

We plan to cover:

WHAT THE LEAD LAW IS NOW,

WHAT THE LONG DISTANCE FUTURE LOOKS LIKE,

OVERVIEW OF THE ACTUAL BILL LANGUAGE (NOTE AS OF 1/29/17 IT IS NOT RELEASED ON THE NH GOVERNMENT WEBSITE),

WHAT IS SURPRISINGLY FAVORABLE AND VERY FLEXIBLE TO LANDLORDS,

WHAT WE WOULD LIKELY OBJECT TO,

OPPORTUNITY TO COLLECT YOUR THOUGHTS AND BRING THEM BACK TO THE LEAD COMMISSION,

CONTACTING LEGISLATORS & ATTENDING THE LEGISLATIVE HEARING,

OPPORTUNITY FOR A LONG QUESTION ANSWER SESSION.

WHAT THE LEAD LAW IS NOW.

When child measures 10ug/dl or above

State does an Environmental Inspection

If they find a lead hazard (in that “primary” unit or the common areas including exterior) then they will do an Environmental Inspection in ALL other units.

Any units where any Environmental Inspections found a lead hazard will go under lead order and have to be abated by abatement rules immediately.

It is way too much to handle at once particularly with the vacancy that often results and the main reasons that landlords lose their property when it goes under lead order.

There are HUD grants that sometimes helps but they have many strings attached which sometimes caused the property to not qualify for financing or simply the grant is used up or not available quick enough.

When child measures 5ug/dl or above warning letters go out but no official order.

The landlord makes a common sense plan to handle the lead hazards that are believed to cause the elevated BLL.

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We have asked for years to get this data so landlords could proactively work to address in a common sense way what is believed to be causing the elevated BLL before it reaches 10ug/dl and a lead order on the entire property gets triggered.

There are options for interim controls to delay the abatement but it can be costly to maintain and beyond tonight’s discussion.

WHAT THE LONG DISTANCE FUTURE LOOKS LIKE.

The science on lead continues proving there is harmful effects to child at very low levels.

RRP now addresses only residential.  It will likely cover commercial as well soon.

A few years back, 2012, CDC dropped their level of concern from 10 to 5 ug/dl.  CDC is presently considering dropping to 3.5ug/dl.

There has also been talk that the horizontal spec of 40ug/SF is likely to drop significantly.

Maine has adopted abatements at 5 ug/dl.

If there is one thing I feel I can promise you, it is that the lead advocates will not stop pushing until there is no lead left available to be consumed.

We had better get the lead handled quickly.

OVERVIEW OF THE ACTUAL BILL LANGUAGE (NOTE AS OF 1/29/17 IT IS NOT RELEASED ON THE NH GOVERNMENT WEBSITE).

This summary is grouped by category with references to which sections of the bill apply to each category.

The categories are:

Schools, Day Cares

Water Utility Companies

Sales disclosure

BLL Testing, increase screening rates

Restrict DHHS “belief” authority to conduct investigations (which trigger lead abatement orders)

Notification of any positive level

Remediation of Lead in Water and Rental Housing Fund.

Essential Maintenance Practices

Change Whole Building Approach to Graduated Approach

Work Plan at 5ug/dl

Lead testing in Water

Landlord & Tenant requirements & remedies

Building permit RRP

State run RRP

Effective Dates

First, let’s define a few terms so that we are talking the same language.

BLL = Blood Lead Level and is a measure of how much lead is in a person’s blood.  It is usually stated in units of ug/dl and used as the trigger for lead orders and other various requirements of the lead law.

RRP = the Renovation, Repair, Paint program.

Presently this is a federal law administered by the EPA.  It has been in place since 4/10 and basically says that for any property built prior to 1978 if any person disturbs lead then they must use lead safe work practices which include a very few requirements and many recommendations.

Some of the requirements are using HEPA vacuums and putting down plastic to contain lead debri and dust.

Again this has been present law since 2010 and everyone is already required to follow it.

(If all landlords and maintenance staff followed RPP, proactively addressed lead hazards, even in a temporary way, we would have very few elevated BLLs and very little problems with lead).

EMP

Essential Maintenance Practices is a list of things to do on a regular basis to eliminate lead hazards at your property.  It would include things like an annual inspection to check for and address lead hazards using lead safe techniques.

Abatement rules

is a set of lead safe practices that are much more strict than RRP and must be followed in lead abatement orders.

Second, let’s quickly mention the portions of the bill landlords will likely have no position on.

Schools, Day Cares

“170131 LeadBillBeforeOLS.pdf” Section 14

“170131 LeadBillBeforeOLS.pdf” Section 15

EMP is mandatory for child day care

“170131 LeadBillBeforeOLS.pdf” Section 23

Schools have to address lead in drinking water.

Water Utility Companies

“170131 LeadBillBeforeOLS.pdf” Section 23

Public Water Systems and Privately Owned Redistribution Systems

We think this is important and should be the first step in regards to lead in water.

In other words, make sure the water being delivered to our properties is good before we are required to remediate lead in water which might not be from our building but actually delivered to us with lead in the water already.

However, the wording seems weak.  Water systems have to make reasonable efforts but don’t have to excavate to prove anything.  Still it is a good start.

Sales disclosure

“170131 LeadBillBeforeOLS.pdf” Section 22

Modifies the existing disclosures given on the sale of real estate to include more information about lead.

We have no issue with informing buyers about lead.

BLL Testing, increase screening rates

“170131 LeadBillBeforeOLS.pdf” Section 4

Move all NH municipalities to universal testing meaning all 1 & 2 years old children would be tested for lead. Screening rate in NH are exceptionally low in the range of 16% are tested now.  The legislation creates a push to get the rate closer to 85%

“170131 LeadBillBeforeOLS.pdf” Section 5

Another provision makes it so no child admitted to public school without having had a prior lead test.  However, parents may choose to refuse to have the child tested.

“170131 LeadBillBeforeOLS.pdf” Section 16

“170131 LeadBillBeforeOLS.pdf” Section 17

“170131 LeadBillBeforeOLS.pdf” Section 18

“170131 LeadBillBeforeOLS.pdf” Section 19

“170131 LeadBillBeforeOLS.pdf” Section 20

“170131 LeadBillBeforeOLS.pdf” Section 21

Insurance must cove blood lead testing.

Restrict DHHS “belief” authority to conduct investigations (which trigger lead abatement orders)

“170131 LeadBillBeforeOLS.pdf” Section 3

DHHS commissioner may also conduct investigations when there is reason to

believe probable cause that a lead exposure hazard…exists.

Third, discussed more thoroughly the portions of the bill that affect landlords more directly.

Notification of any positive level

“170131 LeadBillBeforeOLS.pdf” Section 6

We already get notices from 5 and above.

From the Bill:

“…if a venous blood test demonstrates the presence of lead at a level less than 5 micrograms per deciliter is found in the child’s blood. Such notice to the property owner shall specify that it is neither a finding that a lead exposure hazard exists in the property nor is it an order for lead hazard reduction. Such notice shall include information about the health hazards of lead poisoning, state standards for identifying and eliminating lead hazards, and

the federal Renovation, Repair and Painting Program, and Essential Maintenance Practices. It

shall contain information about the lead exposure risks associated with not complying with lead-safe renovation, repair and painting practices as well as information about

requirements that will come into effect in the event a child is documented with a venous blood

level of 5 micrograms per deciliter or higher.”

“170131 LeadBillBeforeOLS.pdf” Section 7

Notification to the parent

From the bill

“…Such materials shall inform parents who are tenants to work with the property owner and advise against engaging in renovation, repair or painting activities themselves.”

Remediation of Lead in Water and Rental Housing Fund.

“170131 LeadBillBeforeOLS.pdf” Section 33

Paint can fee has been dropped.  We’ve heard several times that the legislature would have no political will to create the paint can fee.

The remediation fund would be established by a $3 Million allocation from the state general fund for fiscal year ending 6/30/18 & 6/30/19.

“170131 LeadBillBeforeOLS.pdf” Section 9

There is a proposal that this fund be administered using a simple voucher system that would effectively give landlords a flat price per window, per door etc.  The target is reimbursing approximately 50% of average labor and materials.  The reimbursement would be for landlords that voluntarily comply with Essential Maintenance Practices and are proactive at remediating lead hazards.

It would not be available for property owners who have a child with an elevated level or an enforcement action by DHHS.

“170131 LeadBillBeforeOLS.pdf” Section 11

“170131 LeadBillBeforeOLS.pdf” Section 12

Section 11 & 12 establish the fund

Essential Maintenance Practices

“170131 LeadBillBeforeOLS.pdf” Section 13

EMP originally advocates were adamant that EMP would be mandatory but this final version has EMP voluntary unless a child had an elevated lead level.  

II. There will be a training which presently is thought to be something simple on line with the idea that most everything in the EMP is already taught in the RRP.

The requirements are: From the bill

(a) Annual visual inspections of interior and exterior surfaces to be conducted by the

owner or his or her delegate to identify lead hazards.

(b) Safe repair of any lead hazards identified during annual inspection as soon as

practicable and no later than 60 days following annual inspection.

(c) Installation of vinyl window-well inserts in windows with wells or sashes containing lead-based paint.

(d) Specialized cleaning at the time of tenant turnover, after any work that disturbs painted surfaces, and at least annually in interior common areas.

(e) The removal of visible paint chips from the ground of outdoor areas within 10 feet of the building, including outdoor porches and stairs, and from any play areas.

(f) Compliance with the federal Renovation, Repair and Painting Program in the event of renovation, repair or painting activities.

(g) Annual certification by the owner that essential maintenance practices have been implemented, with such certification to be notarized and retained for a minimum of 3 years.

(Current plan is the owner self certifies and holds the records).

III allows for owners to make a plan to come into compliance over time and still qualify for the use of remediation fund.

IV.  Lead paint must not be left exposed.

V.  EMP mandatory for licensed child care facilities and properties where child measured >=5ug/dl BLL.

EMP shall not apply where a licensed lead inspector has certified that no lead-based paint is present.

VI EMP shall not be required for an owner occupied dwelling unit.

VII There are two incentives “carrots” for property owner that voluntarily comply with EMP:

1: some release of liability

“the owner shall not be liable for breach of warranty of habitability release to lead-based paint and shall also be entitled to a rebuttal presumption of having exercised due care relative to preventing lead hazard exposures, provided the property owner demonstrates having complied with essential maintenance practices during the time period relevant to a lead-based legal action.”

2: use of a new easy to use lead remediation fund to pay approximately 50% labor & materials for small to large project work.

Change Whole Building Approach to Graduated Approach

“170131 LeadBillBeforeOLS.pdf” Section 3

“170131 LeadBillBeforeOLS.pdf” Section 8

This changes the lead order process from the present abate entire building with abatement rules all at once method (whole building approach) to a method of abating the primary unit and units with children and pregnant women plus common areas accessible only to those units right away then the remainder at tenant turn over but no later than 5 years. (graduated approach).  

From the bill

“for a multi-unit dwelling, shall provide the property owner the option to proceed in a phased

approach by which 

(a) lead hazard reduction is prioritized and proceeds on an expeditious basis for all

units occupied by a pregnant woman or a child less than six years of age, and interior and exterior areas, including soils, accessible to children, and 

(b) lead hazard reduction may occur at a later time for any unit or units not occupied by a pregnant woman or a child less than six years of age, provided that lead hazard reduction shall be completed for such unit or units and associated common areas when the unit or units become vacant between leases, 

but no later than 5 years after issuance of the lead hazard reduction order.

The department may, under extraordinary circumstances, grant a variance to exceed the five-year limitation for specific units occupied by elderly or disabled or longterm tenants for whom lead hazard reduction activities would pose a hardship, provided such variance would not jeopardize the health of such tenants or other individuals, such as pregnant women or children less than six years of age who visit the unit. 

Notwithstanding the option to delay lead hazard reduction in units not occupied by a pregnant woman or a child less than six years old, a property owner may not delay implementation of essential maintenance practices in such units.”

Work Plan at 5ug/dl

“170131 LeadBillBeforeOLS.pdf” Section 2

“170131 LeadBillBeforeOLS.pdf” Section 10

DHHS provides notice to parents

that advises the importance of periodic blood lead level testing. If the parents are tenants of a rental property, the noticeshall also include information about actions that the property owner is required to take, and about the importance of cooperating with such actions.

DHHS provides notice to property owners of the requirements in this section (5 – 10ug/dl).

The notice shall also contain information about the risks associated with not complying with lead safe practices.

One of the significant parts of this section is that it is a move away from one of our long term complaints of “one size fits all” law.  This section allows an extreme flexibility to avoid a lead abatement order to the property owner that is proactive at handling lead hazards in a lead safe way and protecting children and comes down much harder on the property owner that does not handle the situation well or at all.

From the bill:

III. If the child resides in a leased or rented dwelling or dwelling unit, the property owner

or agent thereof shall, no later than 20 days after receipt of the notice required in RSA 130-A:4-a,II, provide the department with a work plan to reduce the risks of lead exposure developed in accordance with the department’s standards by a certified risk assessor, a certified lead abatement contractor, or

an individual certified under the renovation, repair, and painting program. If the department does not respond within 14 days of acknowledged receipt of the work plan, the work plan shall be deemed approved. Implementation of the work plan shall be completed within sixty days of the date it is deemed approved by the department, except that the department may for good cause allow additional time, provided steps are taken to protect tenants during such additional time.

(Simple version of IV says if the property owner does nothing or child’s BLL does not go down then full lead abatement order process will apply).

IV. If a property owner is required to comply with RSA 130-A:4-a,III, the department shall initiate an investigation of the property pursuant to RSA 130-A:5 if (a) the property owner fails to comply with RSA 130-A:4-a,III, or (b) the child’s blood lead level remains at a level of 5 micrograms per deciliter or higher 60 days or more after the date required in RSA 130-A:4-a,III for completion of work plan implementation, or (c) another child residing at the property is documented with a blood lead level of 5 micrograms per deciliter or higher 60 days or more after completion of work plan implementation under RSA 130-A:4-a,III, or (d) a child who resides at the property is found to have a venous blood lead level of 10 micrograms per deciliter or higher.

V. Following completion of work plan implementation under RSA 130-A:4-a,III, the

property shall be subject to the essential maintenance practice requirements established in RSA 130-A:20 and associated rules.

Lead testing in Water

“170131 LeadBillBeforeOLS.pdf” Section 28

Landlords, under the bill, are required to test for lead in drinking water within one year of the bill passing, and at any time a child tests positive for lead. If lead is found to exceed EPA standards, the landlord shall notify the tenant and prospective tenants within 60 days of receiving the water test results, and take reasonable remediation steps. This can be installing a certified water filter on the kitchen sink.  Using a water filtration pitcher may also be acceptable.

Originally landlords were against this section feeling that first efforts at lead in water should be with the companies supplying the water.

However, the latest version would require that the landlord only require testing once within a year of the bill passing.  Initial anecdotal evidence indicates that high lead in water in very rarely found.  There is also planned to be a fund established that would give money at 50% labor and materials that could be used for lead remediation including lead in water for property owners voluntarily complying with EMP.  The fund is planned to be simple to use with very little strings attached.

(sampling done by DHHS during lead abatement projects has not found any lead in water.)

Landlord & Tenant requirements & remedies

“170131 LeadBillBeforeOLS.pdf” Section 25

“170131 LeadBillBeforeOLS.pdf” Section 26

“170131 LeadBillBeforeOLS.pdf” Section 27

“170131 LeadBillBeforeOLS.pdf” Section 29

“170131 LeadBillBeforeOLS.pdf” Section 30

“170131 LeadBillBeforeOLS.pdf” Section 31

​The section numbers at the end of each paragraph are the section numbers in the bill. 

​These sections amend RSA 540, which contains the rules regarding evictions, and RSA 540-A, which is the Prohibited Practices Act. The sections increase both landlord and tenant responsibilities, and gives both the ability to seek a court order to enforce those responsibilities.

Landlords cannot willfully fail to comply with the applicable laws concerning lead. (Section 29)

Tenants will have to:

1.​Comply with the reasonable written instructions of the landlord, the landlord’s agent or contractor, to prepare the unit for remediation of a lead hazard (also insect or rodent infestation) as long as the instructions are given to an adult member of household and the tenant has a reasonable time to prepare the unit, which has to be at least 72 hours. (Section 26)

2.​The tenant cannot refuse to allow the landlord to enter the unit after 48 hours’ notice, to evaluate if a lead hazard exists, when the landlord has been notified by the tenant or a public health official of a potential hazard. (Section 27)

Although landlords and tenant will be able to seek a court order to enforce the above using RSA 540-A, which is the simple fill in the form petition to the court, neither will be able to seek the $1,000 fines that can be imposed for other violation of that statute, except when a landlord willfully violates a court order.  In that situation the landlord is subject having to pay damages, costs and attorney fees. (Sections 30 and 31).  However if a tenant willfully violates a court order, the tenant is not subject to damages, costs and attorney fees.

The bill also includes a provision that it will be grounds for an eviction, with a 7 days’ notice, for a willful creation of a lead hazard exposure, as defined in RSA 130-A:1, XVI, by the tenant, members of his household, or guests (Section 25).

A lead hazard exposure is defined in RSA 130-A:1, XVI as follows:

"Lead exposure hazard'' means:

(a)​The presence of lead base substances on chewable, accessible, horizontal surfaces that protrude more than 1/2 inch and are located more than 6 inches but less than 4 feet from the floor or ground;

(b)​Lead base substances which are peeling, chipping, chalking, or cracking or any paint located on an interior or exterior surface or fixture that is damaged or deteriorated and is likely to become accessible to a child;

(c)​Lead base substances on interior or exterior surfaces that are subject to abrasion or friction or subject to damage by repeated impact; or

(d)​Bare soil in play areas or the rest of the yard that contains lead in concentrations equal to or greater than 400 parts per million of lead in bare soil in children's play areas or 1,200 parts per million average for bare soil in the rest of the yard.

Building permit RRP

“170131 LeadBillBeforeOLS.pdf” Section 31

Building permit would require a certification that RRP will be used if RRP would be required.

Actually we view this as good.  Everyone should be using RRP if it would normally be required anyway and RRP will greatly reduce the number of BLL elevations which is beneficial to everyone.

State run RRP

“170131 LeadBillBeforeOLS.pdf” Section 1

NH DHHS would take over running the RRP including rule making authority.

We are against this provision.  However, notice that the bill addresses one of our concerns by limiting DHHS so they can not “tighten” the RRP rule but only enforce it which includes certifications and fees.

We do not want to see another bureaucracy created and don’t want to give DHHS “one foot in the door” and have them come back in a few years and tighten the RRP rules.  The RRP rules as administered by the EPA are quite reasonable and we don’t need to provide opportunity for the state to make them worse.  As originally designed by the EPA a contractor with EPA certification can work in any state.  With state taking over running the RRP these same contractors would have to acquire certification in each state.   We have seen DHHS quite over zealous in applying their rules and don’t need to give them yet another domain to control.

Effective Dates

Insurance coverage

I. Sections 16, 17, 18, and 20 shall take effect October 1, 2017 at 12:03 a.m.

Health Services Corporations, Health Maintenance Organizations coverage

II. Sections 19 and 21 shall take effect January 1, 2021 at 12:02 a.m.

III. The remainder of this act shall take effect 60 days after its passage.​

Additional notes

…

Dropped.

Minimum Housing Standards, RSA 48-A:14

…

dropped.

Prohibited Practices

RSA 540-A:3 to include that

No landlord of pre-1978 rental housing shall allow the presence of loose, peeling, chipping, chalking or flaking lead-based paint or 

have high lead in water

or fail to comply with essential maintenance practices and applicable public health laws and regulations concerning lead.

…

dropped.

Remedies for Prohibited Practices

RSA 540-A:4

Landlord subject to injunctive relief for not addresses lead in paint or water and civil penalties to tenant if not complying with injunctive relief.

…

dropped.

Building official RRP enforcement

…

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Summary of the original bill & second draft bill

This is not really relevant any longer but it will give you an idea how far positive we have come from the original bill.

These points are extremely oversimplified to give you the flavor of what was in original drafts of the bill.

Minimum Housing Standards, RSA 48-A:14

Added property may not have loose, peeling, chipping, chalking or flaking lead-based paint

water lines may not have high lead in water 

…

Prohibited Practices

RSA 540-A:3 to include that

No landlord of pre-1978 rental housing shall allow the presence of loose, peeling, chipping, chalking or flaking lead-based paint or 

have high lead in water

or fail to comply with essential maintenance practices and applicable public health laws and regulations concerning lead.

…

Remedies for Prohibited Practices

RSA 540-A:4

Landlord subject to injunctive relief for not addressing lead in paint or water and civil penalties to tenant if not complying with injunctive relief.

…

Lead in water testing

Landlord required to test for lead in water and required to remediate for lead in water.  Using filters for lead remediation is allowed.

…

Tenants must comply with written instructions to prepare for remediation of a lead hazard.

…

Tenant may be evicted for willful creation of a lead hazard

…

Day Care license

Can be suspended, revoked or denied if not following Essential Maintenance practices or other lead laws (RRP).

Must test for lead in water.

…

Blood Lead Level, BLL, of action

Drop BLL from 10 ug/dl to 5 ug/dl

Projections have been that this would cause the number of lead orders to sky rocket from 75 /year to any where from 600 to 7000/year.

Also, DHHS must conduct investigation (which leads to lead order) when DHHS believes there is a lead hazard.

…

RRP

NH DHHS would take over running the RRP including rule making authority.

…

Essential Maintenances Practices, EMP

Would be mandatory for pre-1978 rental properties and childcare facilities

Tiny incentive, “carrot”, offered that property owner shall not be liable to a tenant of the property for any warranty of habitability claim related to exposure to lead.

…

Building permits, enforcement

Building permit would require a certification that RRP will be used if disturbing lead.

Building officials can coordinate with DHHS to enforce RRP.

Building official may shutdown a job if they believe RRP is not being followed.

…

Lead Poisoning Prevention fund

Expanded to include the very non-descript “and other designated activities” & replacement of lead pipes.

…

Public Water Systems and Privately Owned Redistribution Systems

Will have to inspect their systems for lead pipes and eliminate lead pipes within one year.

…

Paint can fee

Established to raise money for lead remediation and prevention of childhood lead poisoning.

…

Notifying Purchasers of Real Property

Added wording to notifications including lead in water

…

BLL testing

Move all NH municipalities to universal testing meaning all 1 & 2 years old children would be tested for lead.

No child admitted to public school without having had a prior lead test.

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