City, Legal Aid Clash On Lead Paint

Thomas Breen photosPaul Bass photoThe city spent $32,000 on the court-ordered, emergency lead abatement of a single Elm Street apartment.

According to the health department, the abatement went off without a hitch, and lawmakers should rest easy now that the landlord has fully reimbursed the city.

According to a legal aid attorney and lead poisoning watchdog, the abatement was too costly, too slow — and indicative of city government’s wholly inadequate and dishonest response to New Haven’s child lead poisoning crisis.

Those two perspectives were on display on Thursday night during a City Services and Environmental Policy (CSEP) committee hearing in the Aldermanic Chambers on the second floor of City Hall.

City Director of Environmental Health Paul Kowalski and New Haven Legal Assistance Association (NHLAA) Attorney Amy Marx took turns pitching the alders on how to interpret the city’s emergency procurement of $32,104 last summer to complete the lead paint abatement of the second floor apartment of 969 Elm St.

To Kowalski, the process went smoothly and exactly as it should whenever a judge orders the city to expedite the clean up of lead paint hazards at a residence: The city hired a contractor, oversaw the abatement, and was fully reimbursed by the landlord after the abatement was complete.

“Nothing was out of the ordinary,” Kowalski said about the process.

Christopher Peak photoThat’s not how Marx saw it. A local attorney who recently has represented multiple lead-poisoned child tenants, including TJ Mims, the three-year old former tenant at 969 Elm, Marx argued that the long delay, judicial mandate, and high cost associated with the abatement were all cause for an extraordinary level of concern about how the city currently responds child lead poisoning crisis.

After all, she said, the situation at 969 Elm worked out “perfectly” only because legal aid got involved, a judge ordered the city to relocate the tenants and abate the property, and the landlord sold the property, thereby securing enough funds to pay back the city.

Over the past year and a half, three separate state judges have publicly rebuked the city’s health department for inadequate lead paint inspections, for storing lead-related notes on paper and not in electronic records, for failing to enforce timely and sufficient abatements of lead-hazardous properties, and for failing to follow up and make sure that abated properties remain safe for child tenants to keep living in.

Thomas Breen Photo“Boy, there’s a lot we could discuss about this issue,” Westville Alder and CSEP committee member Adam Marchand said, “about the presence of lead in homes and the damage it does to young people who come into contact with that lead.”

Although the alders unanimously voted to approve the city’s emergency procurement of funds for this particular abatement, they also all recommended that the city and the alders hold future public conversations about improving the city’s handling of child lead poisoning cases.

“I think that’s really worth following up on,” Marchand said. “There’s a problem here that needs to be addressed.”

Morris Cove Alder and CSEP Chair Sal DeCola promised to talk with aldermanic leadership about the lead-related concerns raised during the public hearing by Marx and by his fellow committee members.

$32,000 Abatement For One Unit

The city’s abatement of the second floor apartment of 969 Elm St. took place soon after Superior Court Judge Walter Spader, Jr. ordered the health department in July 2018 to take over the abatement and to relocate Mims, his mother, and his younger sibling to an area hotel.

“The process worked,” Livable City Initiative (LCI) Deputy Director Frank D’Amore told the alders while sitting alongside alongside Kowalski and city Purchasing Agent Michael Fumiatti.

Fumiatti said the city put out an “informal” bid for the abatement work to the state-licensed, city-preferred contractors included in its Small Contractor Development program.

Fumiatti said he didn’t remember exactly how many contractors responded to the bid, but the city ultimately chose the East Haven company J&A Lead Abatement.

The city paid J&A $32,104 to complete the abatement on Aug. 6, and LCI then put a lien on the property to recoup those costs.

That finally happened after Dec. 28, when the Elm Street property’s landlord, Ronald Livieri, sold the three-family house for $210,000 and reimbursed the city for the $32,000 lead abatement and for the roughly $30,000 more in tenant relocation costs.

“We’re happy to report that the issue was resolved,” D’Amore said. “The property was sold, and the city was paid in full for all the money that we put up, for the abatement and for the relocation.”

Downtown Alder Abby Roth asked the city officials how the property got to the point where a judge needed to order the city take over the abatement.

“That I am not able to answer,” Kowalski said.

Silence.

“The owner did not have the money, as far as we could tell,” he continued as Roth waited for a longer reply. “I don’t discuss specific cases as it relates to this.” The court ordered the city to pay for the abatement, he said, so that’s what the city did.

“But was there something the city didn’t do that required us to go through the process of litigation?” Roth pressed.

“The city health department was pursuing everything it was supposed to be doing in this particular case,” Kowalski replied. “The court ordered that the abatement proceed with the city funding, and that’s what the city of New Haven did.”

East Rock Alder Anna Festa picked up the line of Roth’s questioning: What led the city to the point of litigation? How did the case get to a point where the judge had to step in and order the city to better protect the child tenant?

“I did not bring the entire file,” Kowalski said. “I thought this was just about the emergency procurement,” and not a history of the department’s involvement at 969 Elm St.

He recalled that the landlord had initially applied for a loan from the federal lead abatement funding managed by the city. But the court ordered that the abatement be expedited, he said, so the city and the landlord couldn’t wait the two months it usually takes to get the homeowner one of the federal lead abatement loans.

Prospect Hill/Newhallville Alder Steve Winter asked Kowalski why the abatement of one apartment cost over $32,000.

Kowalski said the price tag was so high because 969 Elm St. is in an historic district. The abatement work required, such as the replacement of windows and the removal and encapsulation of lead-hazardous paint, had to meet certain standards set by the State Historic Preservation Office (SHPO).

“It just seems like an awfully high number for one unit,” Winter said.

“I’m going to agree,” Kowalski replied.

Not An Isolated Case

Marx followed Kowalski, D’Amore, and Fumiatti with a very different interpretation of the court-ordered lead abatement at 969 Elm.

As she approached the front of the room, the three city officials who had just finished addressing the alders immediately left the Aldermanic Chambers. None stuck around to listen to Marx’s concerns or to the alders’ response.

The picture that Marx painted for the committee stretched beyond the simple facts of the city’s emergency procurement of funds to abate the Elm Street apartment.

She answered the alders’ prior questions about how the city ended up in court on this particular case, and said that 969 Elm is unfortunately not unique. Hundreds of children in this city are lead poisoned each year, she said, and the city regularly responds to only a fraction of those cases.

“There was a young child three years of age who first tested positive for lead in August 2017,” Marx said.

That was TJ Mims, who lived with his mom and brother at 969 Elm.

 

He tested at 6 micrograms per deciliter (mg/dL), which is one point higher than the level the city and the federal Centers for Disease Control’s (CDC) say presents an undue risk for the development of permanent neurological problems in children under six years old.

After the child first tested as lead-burdened, she said, the city failed to get the landlord to abate the property and failed to adequately communicate to the child’s mother the dangers presented by her apartment.

“We’re only here for the procurement,” DeCola reminded Marx. “If you want to have a forum about this, we need to talk to our colleagues.”

Marx agreed, but continued on with her explanation.

By December 2017, she said, Mims’s blood lead level had risen to a 17. Even worse, his brother was now also testing at an elevated blood lead level.

Not until legal aid filed for injunctive relief and the judge issued the court-ordered mandate in July 2018, she said, did the city finally kick into gear and make sure that the property was adequately abated. And that was a full 11 months after Mims first tested at an elevated blood lead level.

And Mims and his brother aren’t the only children in New Haven who have suffered at from the health department’s inadequate enforcement of city lead laws, she argued.

Based on legal aid’s review of review of state Department of Public Health data, she said, New Haven likely has well over 350 children under the age of six who are lead-burdened.

And yet according to legal aid’s review of city land records, she said, the city’s health department conducted lead paint inspections in only 69 homes in 2017.

And of those inspected homes, she said, the city has posted lead abatement releases on only 53, and has created lead management plans for only five. She called on the mayor and the alders to convene the Lead Poisoning Advisory Committee as mandated by city law and to conduct a comprehensive review of how the city currently handles child lead poisoning cases.

“What we’re looking for is an open and transparent conversation,” she said, “about what truly is a crisis, if we have 300 kids suffering from permanent damage.”

Previous lead coverage:

Legal Aid To City: Get Moving On Lead Paint Law
100+ Tenants Caught In Lead Limbo
2 Agencies, 2 Tacks On Lead Paint
Chapel Apartments Get 3rd Lead Order
Lead Sends Family Packing
Health Officials Grilled On Lead Plans
Judge Threatens To Find City In Contempt
Same Mandy House Cited Twice For Lead Paint
Lead $ Search Advances
3 Landlords Hit With New Lead Orders
Another Judge Rips City On Lead
Judge To City: Get Moving On Lead
Health Department Seeks Another $4.1M For Lead Abatement
City-OK’d Lead Fixes Fail Independent Inspection
Judge: City Dragged Feet On Lead
2nd Kid Poisoned After City Ordered Repairs
Judge: City Must Pay
City Sued Over Handling Of Lead Poisonings
City’s Lead Inspection Goes On Trial
Eviction Withdrawn On Technicality
2nd Child Poisoned; Where’s The City?
Carpenter With Poisoned Kid Tries A Fix
High Lead Levels Stall Eviction
460 Kids Poisoned By Lead In 2 Years
Bid-Rigging Claimed In Lead Cleanup
Judge Orders Total Lead Paint Clean-Up
Legal Aid Takes City To Task On Lead

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posted by: Dennis Serf on February 8, 2019  1:59am

Lots of questions remain.

Why did it cost $32K? Almost every house in New Haven includes lead paint. At that price most 3 family properties are worthless when you add in the cost to house the displaced tenant.  Maybe the assessments should reflect the cost of abatement. Need
to dig deeper here.

350 is a crisis. How does New Haven compare to other towns and cities? Does anyone know or is Legal Aid assisting only New Haven?

How did it become a crisis NOW? Lead paint has been in the houses for years, so why is it only now that we have so many lead poisonings?


There is nothing historic about the house, or that particular block. I’m familiar with the house and neighborhood. In fact, I believe the third floor unit was featured in the NH Register many years ago bc the unit was completely renovated and made modern. Guess it was OK to make changes then.

I drove by the house yesterday. The wooden front porch is still being rebuilt. There are paint chips all over the place, and no protective plastic in place to prevent the dust from blowing around - the dust can be as bad as the paint chips bc it gets inhaled and easily absorbed.

posted by: Noteworthy on February 8, 2019  8:11am

It is a mystery why the city’s health department in particular, and why City Hall executives don’t enforce accountability and significant change to bring this into both compliance as well as just doing the right thing. What’s the deal here and why can’t they get it right?

posted by: Bohica on February 8, 2019  8:59am

Simple fix is to follow the State law.  Conserve your staff and resources by responding to only lead poisoned kids, which is 20 micrograms per deciliters or greater and children between 10-19micrograms per deciliters who test within that range twice in blood tests taken 3 or more months apart. Ignore the CDC recommendations because that is a best guess and not a regulation. When it comes to abatement, scrap New Haven’s remove all lead paint whether its defective or intact and use the State standard of removing only defective surfaces, mouthable and impact /friction surfaces and placing the remainder on a management plan. This would free up your staff to concentrate on children who are the actual priorities and cut abatement costs drastically.

posted by: anonymous on February 8, 2019  9:05am

The requested GOP border “wall” funding, if spent differently, would be enough money to rehab just about every single apartment or home that lead poisoned children live in this year, across the entire United States.

And, there would be money left over to boost testing (in many states, more than half of the lead-poisoned children are missed - CT does a bit better on that at least).

Someone should ask the CT GOP which they think is more important: reducing lead poisoning nationally, or building a useless wall that not a single GOP or Democratic congressperson along the border has said that they want.

posted by: newhavenlives on February 8, 2019  9:50am

Bohica. You are exactly right! The NHHD’s aggressive position on lead abatement —unlike any other in the state is coming back to bite Kowolski in the a$$.

posted by: Dennis Serf on February 8, 2019  11:14am

If Bohica’s comments are true then it explains why it cost so much to abate in New Haven, why New Haven seems to have such a major issue relative to surrounding cities/towns, and why there is suddenly an increase in lead poisoning when we know lead paint has been in most homes for more than 50 years.

If this is indeed a crisis, then it needs to be addressed. But, if it is a manufactured crisis then we deserve to know. Given the details laid out in the article and in the comments section, it’s hard to know at this time. The BOA should find out.

Dennis Serfilippi
https://www.ournewhaven.org/

posted by: yalegrad on February 8, 2019  12:55pm

Another New Haven Fail.

The vast majority of the housing stock in New Haven has lead in it.

The City should follow Bohicas advice and limit its lead purge to State standards and deal with the lead poisoned. They should also make funding more accessible to landlords (provide more education, more funding, shorter forgiveness periods).

The city can do more to educate the population about the dangers. These problems disproportionately affect renters and poorer people.

Landlords with hazardous properties should be allowed to decline to rent to tenants with kids.

Any other suggestions?

posted by: Mr. Momiro on February 8, 2019  1:20pm

Bohica:

What?! “Ignore the CDC recommendations”?! Oh dear, that’s not sound thinking, but it appears that’s how Mr. Kowalski (and his inspectors, perhaps) are thinking!

CDC recommendations are based on sound, repeated, and long-term studies. They aren’t pulled out of a hat. We exist on this Earth not simply to save the City /the State /landlords money when they don’t feel like removing a *toxic* substance from the property where a *human child* might reside.

posted by: robn on February 8, 2019  5:29pm

It’s clear that the punitive measures of NHV aren’t working and that Owners would rather play Russian roulette than comply. State law should be changed so that in cases where a child is poisoned, the law immediately severs the lease agreement, requires the landlord to pay for a months motel stay and moving expenses for the family, and then disallows rental of that unit until the problem is corrected (with random city checks and heavy punitive fines if the landlord rents again without abating). A month is fair to the family for finding a new place and this process would allow the owner sufficient time to calmly gather competitive bids for lead abatement (or do it themselves in their own time). This also reduces city expense for overlooking something that the private owner should be overlooking.

posted by: 1644 on February 8, 2019  6:29pm

Momiro:  The CDC has stated that no level of lead can be considered safe.  This statement does not mean that low levels are unsafe, just that we do not know.  There is no scientific evidence to establish a safe level because it would be unethical to conduct a proper scientific study to establish a safe level.  Moreover, the city’s policy of requiring complete removal of all lead is irrational and needlessly expensive.  Encapsulated lead, like encapsulated asbestos, cannot harm, since it cannot be ingested or inhaled, yet New Haven requires its removal. As other commentators have stated, requiring New Haven’s housing to be lead free destroys the economic value of much of New Haven, even though that housing, even though that housing can be used with little risk by virtually anyone over the age of five, and certainly by older people.

posted by: robn on February 9, 2019  6:43am

The complete removal of all lead paint is as economically unreadable as thinking that anyone can build housing units that can be rented for $500 per month (what affordable housing advocates have been pressing for rather than facing the reality that inaffordability stems from low earners, not unreasonable prices for construction)
This all goes along with the new lefts continuing narrative which (like the new right) willfully ignores reality.

https://slate.com/news-and-politics/2019/02/green-new-deal-unrealistic-impossible-experts.amp

posted by: AMDC on February 10, 2019  5:19pm

It still puzzles me why mom would continue to live in the apartment after the blood tests indicated lead.
There is lead on the sides of houses and along the sides of roads. Do we all remember that lead doesn’t go away from the leaded emissions of the past? 
I like the YALE commenter , who recommended being able to not rent to children in houses that have lead, even if it is encapsulated.

posted by: Bohica on February 11, 2019  8:30am

Mr. Momiro, the CDC arrived at that very low level not through clinical studies but a statistical analysis of children’s blood levels of ages 1 through 5 on a national level and settled on the 97th percentile which was 5 micrograms/deciliter of blood. Lead like any other environmental issue creates an industry which tends to perpetuate itself by any means.  The action level in the 90’s for children was 40 micrograms/deciliter, as cases of lead poisoning fell it was dropped to 35, then 30 and finally to 20.  More than likely it will be dropped further which isn’t a bad thing but eventually elimination will be impossible unless the EPA changes the amount of lead that can be in our drinking water, currently at 15 part per billion. Legal aid organizations used to sue the landlords for big pay offs until homeowner insurance dropped coverage now they go after health departments, in fact one such organization used to distribute a fact sheet in the community listing blood lead levels and the corresponding compensation that could expect from a lawsuit in the late 90’s. I don’t understand this current lawsuit its only drawing resources away from the children that really need it.

posted by: Mr. Momiro on February 11, 2019  12:50pm

Oh Dear, Bohica. Given your strong bias, I certainly hope that for our children’s sake you are not employed by the Health Department of the City of New Haven (or any other government agency charged with inspecting for lead).

Nobody is saying that the entire housing stock in New Haven needs to be completely dismantled because lead has been found. These are logical fallacies, used to push a point (and the point seems to be that money is more important than anything, even the health and viability of children).

The simple fact is that it is poor people who are far more disproportionately impacted when: a) lead is found and not properly remediated; and b) the government (here, the City of New Haven’s Health Department) does not make sure that the presence of lead was addressed. Someone asked “why don’t they just move?” as if simply picking up and moving is like getting a new pair of shoes when your old ones wear out. That inability to conceive of the fact that someone who is poor simply does not have the means to easily “pick up and move” boggles the mind.

posted by: Bohica on February 11, 2019  1:16pm

Mr. Momiro,

Just trying to let those who don’t know there are a lot more moving parts to this problem then meets the eye. Most cases of lead poisoning are contracted through dust contaminated with lead, very little is due to pica.  Most of the lead dust is found in window sills and wells due to friction surfaces containing lead based paint being abraded.  Children playing in the wells pick it up on their hands and ingest it.  Programs being directed at this source are much more effective and cost efficient then complete removal of the lead based paint.

posted by: Mr. Momiro on February 11, 2019  3:54pm

Bohica:

I appreciate the explanation (something I happened to already know) about how children typically get exposed to lead. We agree there is no safe level of lead for children to be exposed to, because once they are exposed, the damage alters their lives in irrevocable ways (and ways that, I might add, cause us all to bear greater costs). The simple fact is that the City of New Haven’s Health Department does not have discretion on this matter: they are tasked with inspecting, and inspecting thoroughly, and if they find lead in a residence where children live (or might live) at a given level, they have an obligation to make sure it is properly remediated, and to follow up on that initial inspection. From what I’ve read of Legal Aid’s suit here, it sounds like the Health Department did not do that.

If the Health Department or its inspectors have different personal views on what is or is not worth remediating, they are certainly entitled to hold those views, but the law is the law and they have no business putting their own views (or exercising their own discretion) in upholding the policy of the City of New Haven.

posted by: couger22 on February 12, 2019  2:02pm

i was under the impression that for someone to get lead poisoning they had to eat the paint chips.
Please educate me on other ways this happens.