Lead-based paint activities in military family housing.

• Author: Altera, Barbara B.

1. INTRODUCTION

   Lead-based paint issues affect virtually every military installation. Within the last several years, lead-based paint (LBP) has received a great deal of attention within the Department of Defense (DoD), with significant changes in 1999 and 2001 to several regulations governing LBP and LBP hazards in residential housing. Consequently, this article is intended to provide the major statutory and regulatory requirements as well as some DoD and service-specific policies to assist DoD attorneys with addressing LBP issues in military family housing (MFH). The intent is to consolidate the main requirements into one document that will serve as a useful reference. The primary statutes and regulations focus on housing because lead poses the most danger to children; hence, this article focuses on housing and does not cover non-residential structures.

   As the focus of this article is on LBP requirements and policies, the background in Part II, which explains health risks and relevant statutes governing lead, will be brief. Part III provides an overview of LBP legislation and implementing regulations, with detailed coverage of the important regulatory developments since 1999. This part also defines key terms and LBP activities. Part IV highlights LBP issues in the historic building context. Part V addresses applicability of the main regulations to three types of transactions involving DoD MFH: occupancy of MFH, the transfer/sale of DoD residential property, and privatization of DoD residential property. This section also highlights Air Force efforts to develop LBP policy and guidance.

2. BACKGROUND (1)

   From 1900 through the 1940's, lead was a primary ingredient in many oil-based house paints. (2) Lead-based paint has been used on all types of surfaces, but was used more often on exterior surfaces than on interior surfaces, and more frequently on trim, windows, and doors than on walls and ceilings." (3)

   After 1940, lead-free latex paints became popular, resulting in decreased use of LBPs through the 1950's and 1960's. (4) Thus, the use of LBP in housing was highest prior to 1960. (5)

   In 1978, the United States Consumer Product Safety Commission (CPSC) completely banned LBPs from residential use. (6) The LBP applied many years ago, however, remains potentially hazardous because lead does not decompose. (7

   The sources of lead in the environment are numerous, including "leaded gasoline, lead in pipes and plumbing fixtures, lead from industrial emissions, lead-soldered cans, leaded crystal, and some improperly fired pottery with lead-based glaze." (8) Other sources of lead poisoning are related to hobbies (making stained-glass windows), work (recycling or making automobile batteries), drinking water (lead pipes, solder, brass fixtures, and valves), and home health remedies (arzacon and greta, which are used for upset stomach or indigestion; pay-loo-ah, which is used for rash or fever). (9)

   While the removal of lead from sources (e.g., gasoline and food canning) has reduced population blood lead levels by more than 80 percent, nearly one million children have excessive blood lead levels. (10) The three major sources of lead exposure to children are LBP, lead-contaminated soil and dust, and drinking water. (11) Of these three sources, the most common way young children become lead poisoned is through exposure to lead in dust (12) from LBP in housing. (13)

   Approximately 75% of the nation's housing stock built before 1978 contains some LBP. (14) This paint poses little risk when it is properly maintained and managed. (15) It becomes a hazard, however, when it flakes and/or contaminates soil or dust. (16) Children, in particular, are susceptible to lead poisoning through inhalation of lead dust, ingestion of dust by putting a hand or other object covered with lead dust in their mouths; or eating paint chips or soil containing lead. (17) For adults, the major source of lead exposure is from maintenance, renovation, abatement work, and corrosion control of items coated with LBP. (18)

   Once in the body, lead can cause serious adverse health effects. In adults, lead can cause reproductive problems, high blood pressure, digestive problems, nerve disorders, memory and concentration problems, and muscle and joint pain. (19) Children are at greater risk than adults because their brains and nervous systems are more sensitive, and their bodies absorb more lead. (20) Adverse effects to children include damage to the brain and nervous system, behavior and learning problems (e.g., hyperactivity), slowed growth, hearing problems, and headaches. (21)

3. LEGISLATIVE AND REGULATORY OVERVIEW (22)

   1. The Overlapping Regulation of Lead

      Congress reacted to the dangers of lead by creating an overlapping regulatory scheme. While the primary statute addressing LBP is the Toxic Substances Control Act (TSCA), (23) other statutes also regulate lead. For example, lead is a criteria pollutant under the Clean Air Act; (24) a hazardous substance under the Comprehensive Environmental Response, Compensation and Liability Act of 1980; (25) and a substance with reportable quantities under the Emergency Planning and Community Right-to-Know Act. (26) It is also a hazardous waste under the Resource Conservation and Recovery Act. (27) While there are several statutes that address lead, this article focuses on those that relate to LBP requirements for residential housing.

      As will be seen, LBP legislation generally assigns LBP regulation to the U.S. Environmental Protection Agency (EPA) and the Department of Housing and Urban Development (HUD). HUD provides requirements concerning the activities that are required in target housing (28) (e.g., inspection and abatement); EPA defines the lead levels that constitute a LBP hazard and specifies how LBP activities are to be conducted (e.g., by properly trained individuals); and HUD and EPA jointly develop requirements governing the disclosure of LBP and/or LBP hazards.

      Currently, the main statutory requirements concerning LBP are in three locations: (1) the Lead-Based Paint Poisoning Prevention Act (LPPPA) in Chapter 63 of Title 42, United States Code (42 U.S.C. § 4821 et seq.); (2) subchapter IV of TSCA (15 U.S.C. [subsection] 2681-2692); and (3) Chapter 63A of Title 42, United States Code. Chapter 63A contains those provisions of the Residential Lead-Based Paint Hazard Reduction Act (RLBPHRA) that were not incorporated into the LPPPA or added to TSCA. (29) The development of federal LBP laws are summarized in the following chronology.

      1. Passage of the Lead-Based Paint Poisoning Prevention Act (LPPPA) (30)

         In 1971, Congress first addressed residential LBP with the Lead-Based Paint Poisoning Prevention Act (LPPPA). (31) In this Act, Congress banned the use of LBP in residential structures constructed or rehabilitated by the federal government. (32) Amendments in 1973, 1976, 1978 and 1988 added various requirements applicable to federally assisted (33) and federally owned housing. (34)

      2. Passage of the Residential Lead-Based Paint Hazard Reduction Act (RLBPHRA or Title X) (35)

         In 1992, Congress passed the Residential Lead-Based Paint Hazard Reduction Act (RLBPHRA). The RLBPHRA is Title X of the Housing and Community Development Act of 1992, 42 U.S.C. § 4851 et seq., and is often referred to as "Title X." As previously indicated, various provisions of Title X were incorporated into the LPPPA and TSCA. Those remaining are codified in Title 42 of the United States Code, Chapter 63A.

         Title X significantly changed the LBP requirements for housing. (36) These requirements apply to target housing, which means

         any housing constructed prior to 1978, excluding two types of housing: (1) housing for the elderly or persons with disabilities, unless a child who is less than six years of age resides or is expected to reside (37) in such housing; and (2) any zero-bedroom dwelling. (38) One of the underlying principles of Title X was shifting the focus of public and private sector decision makers from the mere presence of LBP to the presence of LBP hazards. (39) The term "LBP hazard" encompasses LBP and all residential lead-containing dusts and soils--regardless of the source of the lead--which, due to their condition and location, would adversely affect human health. (40)

         1. Inspection Requirements

            Title X amended the LPPPA and TSCA. The LPPPA was amended to require the HUD Secretary (Secretary) to establish procedures mandating an inspection for the presence of LBP prior to federally-funded renovation likely to disturb painted surfaces. (41) The Secretary also was required to establish procedures mandating the inspection and abatement of LBP hazards in all federally owned target housing constructed prior to 1960, and an inspection for LBP and LBP hazards in all federally owned target housing constructed between 1960 and 1978. (42) The term "federally owned housing" is defined to include residential dwellings owned or managed by a federal agency, which includes DoD. (43)

         2. Informational Disclosure Requirements

            New requirements in Title X established LBP information disclosure requirements. Specifically, Congress required the EPA Administrator (Administrator) in consultation with the Secretary, to publish and periodically revise a lead hazard information pamphlet. (44) In addition, the Administrator was required to implement regulations requiring paid renovators to provide a lead hazard information pamphlet to owners/occupants of housing to be renovated. (45) The Secretary was required to establish procedures for provision of lead hazard information pamphlets to target housing purchasers and tenants. (46) The provision of these latter pamphlets was to precede any contract obligation of the potential purchaser or tenant in accordance with regulations to be jointly developed by the Secretary and the Administrator. (47)

         3. Lead Exposure Reduction

            In Title X, Congress substantially amended TSCA by adding a new title to address...