Lead-based Paint: Regulation and Liability

• Publication year: 1995
• Pages: 2205
• Citation: Vol. 24 No. 9 Pg. 2205

24 Colo.Law. 2205 Colorado Lawyer 1995.

1995, September, Pg. 2205. Lead-Based Paint: Regulation and Liability

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Vol. 24, No. 9, Pg. 2205

Lead-Based Paint: Regulation and Liability

by David P. Hersh and James M. Mosley

Lead poisoning, primarily as a result of children eating lead paint chips, costs society billions of dollars annually and is considered by the Centers for Disease Control as the number one environmental problem for this nation's children.(fn1) Lead poisoning at low levels has been shown to cause lowered intelligence quotients, learning disabilities and behavioral problems in children. This article discusses the problem of lead poisoning in the United States and the federal and state attempts to regulate lead exposure hazards. The authors proffer some suggestions for counsel advising the landlord client

Background

The lead poisoning problem, although not yet a major issue in Colorado law, is a large and widespread problem, particularly in the Northeast. It is estimated that the pre-1980 U.S. housing stock contains more than 3 million tons of lead in the form of lead-based paint.(fn2) Children in as many as 3.8 million homes may be endangered by chipping or peeling lead paint or excessive amounts of lead-contaminated dust in their homes.(fn3)

As a result of the increased awareness of the hazards of lead-based paint, federal, state and municipal governments have significantly increased their regulation of lead over the last twenty-five years. Title X, passed by Congress in 1992, mandates that at the time of sale or rental, all owners and landlords must disclose any known presence of lead-based paint in pre-1978 homes.(fn4) State governments, particularly states in the Northeast, have enacted strict laws requiring landlords and property owners to abate lead hazards once they are discovered. These statutes also hold landlords and property owners liable, in some cases strictly liable, for damages from their failure to abate lead.

It is likely that the future will bring increasing regulation and increasing litigation regarding lead poisoning. The high costs of lead abatement, in combination with increased awareness of the hazards of lead exposure, particularly to children, is likely to drive both enhanced regulation and increased litigation.

Federal Regulation of Lead

The federal government began its first efforts to regulate lead-based paint with the Lead-Based Paint Poisoning Prevention Act of 1971 ("1971 Act").(fn5) The 1971 Act directed the Secretary of Housing and Urban Development ("HUD") to "establish procedures to eliminate as far as practicable the hazards of lead based paint poisoning" in homes administered by HUD;(fn6) prohibited the application of lead-based paint to kitchen utensils and any toy or furniture article manufactured and distributed after January 13, 1971;(fn7) and prohibited the use of lead-based paint on homes constructed or rehabilitated by the federal government or with federal assistance in any form after January 13, 1971.(fn8)

Further regulation of lead-based paint occurred in 1978 when the Consumer Product Safety Commission banned the use of paints that contained in excess of 0.06 percent of its weight in lead.(fn9)

Federal legislation addressed the issue of lead-based paint in private housing for the...