New Lead Law Passes, With Teeth

Alders unanimously approved updating the city’s child lead poisoning laws — but only after including a change that won over critics who heralded the final version for protecting at-risk kids.

That vote took place Monday night during the latest full Board of Alders meeting in the Aldermanic Chambers on the second floor of City Hall.

The updates to the city’s lead paint law include the addition of five consequential words to the most hotly contested section of the proposed ordinance amendment: Sec. 16 – 64 (d).

That section now states that, once the local Health Department director learns of a New Haven child under 6 years old who has tested as having an ​“actionable blood lead level” of 5 micrograms per deciliter (μg/dL) or higher, the director ​“shall take the necessary action” to determine if there are lead hazards in that child’s dwelling.

Translated: The Health Department is legally required to conduct some kind of physical inspection and epidemiological investigation of a dwelling unit whenever it learns of a local child exceeding the city’s lead poisoning threshold.

The lead law changes as originally submitted in August by Mayor Toni Harp did not include that requirement, prompting outrage from critics. Instead it gave the Health Department discretion about whether to conduct an inspection. The version approved Monday night maintains a requirement — as upheld by four different state judges in six different cases over the past two years — that the city inspect and enforce lead hazard abatement for properties housing children who test above 5 μg/dL.

That’s the local lead poisoning threshold and the federal Centers for Disease Control and Prevention’s ​“reference level” for children who are at a greater risk of developing lifelong behavioral and cognitive impairments due to lead exposure.

“We are sustaining the language in particular over one word that is very important to many in the community,” Westville Alder Darryl Brackeen said. ​“And that word is ​‘shall.’ We shall investigate and we shall ensure that there is justice for the children of the city. By passing this amendment, justice has prevailed.”

“The amendment that you have before you is a result of our hard work,” Board of Alders Majority Leader and Amity/Westville Alder Richard Furlow said as he introduced the substitute amendment and encouraged his colleagues to support it. ​“This is an effective amendment. It is strong, and it is int the right direction of where we want to go as a city.”

Shelley White, the director of litigation for New Haven Legal Assistance Association (NHLAA), also praised the amended version passed by the alders as preserving and clarifying existing protections.

Legal aid has filed a handful of lawsuits against the city over the past two years regarding its lax enforcement of existing lead laws. Its currently prosecuting a class action complaint that hinges on the city’s decision in November 2018 to require full lead hazard inspections only for children who meet the higher state threshold for lead poisoning.

Its lawyers have also been some of the most outspoken critics of the initial versions of the lead ordinance amendments, and actively lobbied alders to oppose granting the Health Department increased discretion.

“We are very pleased by the language of the amendment to the proposed ordinance,” she said. ​“It will still require that the city take necessary action with respect to children at these elevated blood levels, and restores the protections for these children.”

“As long as the inspections are sufficient to make these determinations about lead paint hazards,” she continued, ​“then we’ll be very pleased.”

“The Right Side”

Furlow introduced the substitute amendment to the proposed lead law changes on the floor of the Aldermanic Chambers Monday night.

Westville Alder and Legislation Committee Vice-Chair Adam Marchand distributed freshly printed-out copies of the amendment’s final language to his board colleagues and to members of the public several minutes after the meeting had begun.

Furlow told the Independent that this was not due to any late changes, but rather due to scrivener’s errors and a misplaced line ​“which had nothing to do with the substance of the amendment.” (An earlier version of this article described the changes as completed ​“last-minute.”)

The addition of the ​“shall” clause to Sec. 16 – 64 (d), thereby requiring some kind of physical inspection from the health department to determine whether or not there are lead paint hazards at the home of a local lead-poisoned child, wasn’t the only substantive change to the the substitute amendment.

The version passed Monday also requires the health director to present to the Board of Alders by no later than May 1, 2020, a list of policies and procedures that the department will develop regarding outreach and education for parents and landlords; coordination with primary care physicians, regional lead prevention resources, city departments, local housing authority staffers, and other stakeholders; and abatement plan criteria.

It also inserts a reminder to Sec. 16 – 67 that the mayor’s right to appoint members to the Lead Paint Advisory Committee is ​“subject to the provisions of the New Haven Charter, Article VII, Section 1(A).”

That section of the charter states that, if the mayor does not move to fill a vacancy on a city board or commission within 60 days of that position becoming available, then the alders can make that appointment instead. The city’s Lead Paint Advisory Committee in its current state has not been been officially impaneled and therefore cannot exercise its authority to make recommendations regarding lead paint policies and procedures and best practices. That’s because the mayor has never submitted official appointment nominations to the Board of Alders for review.

“We’re grateful to aldermanic leadership, and in particular to Alder Furlow, for hearing the concerns that were raised by legal aid on behalf of the children we work with and for incorporating vital protections” into the law ultimately passed by the board, legal aid attorney Amy Marx said after the vote.

“They came out on the right side,” legal aid Executive Director Alexis Smith said in praise of the alders unanimously backing the substitute amendment.

Smith added that legal aid now has to figure out how this final law change will impact the ongoing class action lead poisoning suit still making its way through the state housing court.

“Inspection” v. ​“Determine”

In response to a request for comment on the final version of the lead law changes ultimately passed by the alders, city spokesperson Laurence Grotheer directed the Independent to a recent op-ed Mayor Harp wrote on the matter, which was published by the New Haven Register on Sunday. (Note: The story is behind a paywall.)

In that piece, which can also be downloaded here, Harp argues that the version that she submitted to the alders and the altered version that made it out of the Legislation Committee did not weaken, but rather strengthened, existing protections. ​“This is the truth, despite the self-interested hyperbole of lawyers,” she wrote.

Harp argued that the ordinance strengthened those protections by broadening the Health Department’s recommended inspection purview to include all potential sources of lead, and not just lead paint at that child’s home.

She argued that then-current city law didn’t refer to inspections at all, as inspection-related regulations are determined by the state. The only change the proposed update city law was making, she said, was reinforcing that the city’s Health Department has the authority to inspect properties housing children who tested at or above 5 μg/dL. ​“Without that authority, homeowners could argue that the City doesn’t have a right to inspect their properties.”

“The ordinance amendment provides for Health Department professionals to use their considerable judgment to employ whatever is necessary to protect children,” she continued.

Before the full board meeting began Monday evening, White rebutted the various points made in Harp’s op-ed — particularly the mayor’s contention that Harp’s proposed ordinance amendment, as it then stood, had little bearing on when the city Health Department is required to conduct lead hazard inspections.

Indeed, White confirmed, the word ​“inspection” was not in the city’s previous lead paint laws.

“But the word ​‘determine’ is there,’ she said, ​“and the city is required to make a determination about lead paint hazards in homes, which of course you can’t do without an inspection.”

That’s exactly how four state housing court judges have interpreted the law in various decisions over the past two years, she noted.

More importantly, that’s how the city’s own Health Department had been enforcing the law — up until November 2018, when a decision was made to require inspections only for children who test at or above the state lead poisoning threshold of 20 μg/dL.

“It’s a little disingenuous” to say that the city has never been required to conduct inspections at a certain level when state judges and its own policies have shown for years that that is what local law mandates, White argued.

“The word [inspection] wasn’t there,” she said, ​“but the word ​‘determine’ was there.”

Furthermore, White continued, the city Health Department should not be given too much discretion as to whether or not it has to order inspections for children who test between 5 and 20 μg/dL. That’s because if the city fails to take any action for the child at the lower end of that elevated blood lead level spectrum, then that child’s lead poisoning is likely only to go up and up and up.

Previous lead coverage:
• Legal Aid Lobbies Alders On Lead Paint, Alleges Civil Rights Harm
• Weakened Lead Law Advances
• City Still Fighting As Lead Case Drags On
• City Lands $5.6M In Federal Lead Grants
• 5 New Lead Inspector Positions Approved
• Outrage Stalls Weakened Lead Law
• Lead Paint Legal Tab Tops $118K
• City Plan Passes On Lead Law
• City Loses Again On Lead
• Judge Denies City’s Motion To Dismiss Lead Suit
• City, Legal Aid Clash In Court On Lead
• New Lead Proposal ​“Eviscerates” Mandate
• Lead Cleanup Pricetag: $91M?
• Lead Panel’s Advice Rejected
• Lead Paint Chief Retires
• Lead Paint Fight Rejoined
• Harp Switches Gears On Lead
• Motion Accuses City Of Contempt
• City Loses Again On Lead
• Briefs Debate ​“Lead Poisoning”
• New Haven: Another Flint?
• Harp Administration Admits Relaxing Lead Standard To Save $$
• Class-Action Suit Slams City On Lead
• City, Legal Aid Clash On Lead Paint
• 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