March 10, 2000

Hon. Carol Browner
Administrator
U.S. Environmental Protection Agency
Washington, D.C. 20460

re: Lead Paint Worker Certification regulations ( 40 CFR 745, Subpart L ) and New York City law

Dear Administrator Browner:

The undersigned 21 organizations write to you concerning childhood lead poisoning, a major issue of environmental justice, given its profound impacts on communities of color. In New York City, at least 81% of highly poisoned NYC children are known to be African-American, Latino, or Asian/Pacific. Thus, we are alarmed and dismayed by EPA Region 2's interpretation of the 40 CFR Part 745 Subpart L worker certification regulations with respect to New York City, which took effect on March 1, 2000. 64 Fed. Reg. 42849.

We had expected that EPA would interpret these regulations to require a landlord to use a certified contractor whenever work is performed in response to a City violation for lead paint. Instead, Region 2's interpretation would allow a landlord, who is in violation of the City's lead poisoning prevention laws, to chose whether or not to employ a certified contractor. Obviously when offered a choice, few landlords will use trained workers and children will pay the price.

Executive Order 12898 requires federal agencies take into account the disproportionate impact on poor and minority populations in all their activities. Even assuming (which we do not) that the regulations are so ambiguous as to require agency interpretation, we would have expected that Region 2 would do so in a manner protective of children, especially given commitments made to the environmental justice community after the White House Council on Environmental Quality's Environmental Justice Meeting in New York City, March 6, 1999. (CEQ declared "14. EPA will review its lead-based paint regulations, and consider changes to make it more protective.") . Instead, EPA Region 2 apparently interprets the Part 745 regulations in a manner that will effectively gut the entire program, disproportionately affecting young children of color with increased lead poisoning due to the substandard work practices of careless slumlords.

The regulations, at 745.223 , in fact define "abatement" as "any measure or set of measures designed to permanently eliminate lead-based paint hazards," (1) including "the removal of lead-based paint and lead-contaminated dust," and "projects resulting in the permanent elimination of lead-based paint hazards that are conducted in response to ... local abatement orders."

However, in a deliberate attempt to evade these requirements, New York City has recently rewritten its local laws to denominate lead abatement work as something other than what it obviously is, in the belief that such a ruse will pass muster with the EPA. While the City's new Local Law 38 of 1999 will in fact compel landlords to permanently remove lead paint hazards,(2)this new law seeks to circumvent the federal requirements by creating a scheme under which virtually all lead paint removal activities will be labeled "interim controls." By so doing, New York City seeks, by a mere definitional change, to allow the hazardous scraping of lead painted surfaces to be done by persons who are not licensed, trained, or certified.

EPA Region 2 appears to have been complicit in this effort. We were informed that in a meeting in May 1999, Region 2 staff not only did not attempt to dissuade the drafters of the City's new law from taking this approach, but indeed may have actually advised the drafters how to circumvent the Part 745 worker certification regulations . Since the City's local law was enacted in July, representatives from the New York City Coalition to End Lead Poisoning (NYCCELP) and the New York City Environmental Justice Alliance (NYCEJA) have met twice with EPA Region 2 staff to discuss this problem. Region 2 staff have indicated that the agency intends to take no action on this issue, and indeed, will interpret EPA's regulations so that New York City will be able to exempt virtually all lead abatement work from the regulations' ambit.

On January 10, 2000, NYCCELP and NYCEJA wrote to Region 2 Regional Administrator Jeanne Fox regarding these concerns ( copy enclosed ). This letter engendered a response on January 28 ( copy enclosed ) not from Ms. Fox, but rather from the Chief of Region 2's Pesticides and Toxic Substances Branch, Kenneth Stoller (with whom NYCCELP and NYCEJA had previously met). Notwithstanding the remarkably condescending tone of Mr. Stoller's letter, he completely misses the point -- perhaps deliberately so. This was not a request for Mr. Stoller's subjective opinions on the relative merits of New York City's laws or a cost-benefit analysis of competing social policy options concerning lead poisoning prevention. Rather, the January 10, 2000, letter set out a clear conflict between Regions 2's interpretation and the express language of EPA's own regulations concerning the requirements for certified workers when lead paint hazards are permanently removed pursuant to New York City law.

Contrary to Mr. Stoller's mischaracterization, we are not discussing "renovations and remodeling" here (We recognize, as Mr. Stoller notes, that EPA is still studying the renovation and remodeling issue). Rather, our concerns are the activities that are the precise focus of the worker certification rules: the permanent removal of lead paint hazards. No matter what New York City choses to rename it, this activity remains, under EPA's own definitions ( 745.223 ), lead "abatement."

Yet under Region 2's interpretation of the EPA regulations, the landlord of a child-occupied apartment could be ordered by a local government to scrape lead paint throughout an entire apartment, and nonetheless be permitted to use untrained, unlicensed, unsupervised workers, without any adherence to the careful safety practices in EPA regulations and HUD guidelines, including measures concerning occupant protection, lead dust cleanup, and lead dust clearance testing. (3)

This result would be illogical from a legal standpoint, dangerous from a public health standpoint, and deplorable as a major retreat from EPA's responsibilities. Scraping lead paint without adequate protective measures is universally recognized as extremely hazardous to the health of young children, (4) and it was this to prevent this evil that EPA carefully crafted worker certification and work practice regulations.

Title X and the EPA implementing regulations clearly require that certified workers be used for the activities that New York City seeks to label as "interim controls" in Local Law 38. Furthermore, even if the applicability of these regulations is ambiguous -- and we think they are not -- EPA should resolve any ambiguity toward the goal of protecting children and in carrying out the intent of Title X. Any other resolution will have tremendous adverse impacts upon the health of children -- and not only in New York City.

If EPA ultimately concurs with New York City's action and Region 2's interpretation, New York City's new legislation will no doubt become a model for irresponsible legislators throughout the nation who seek to avoid EPA's worker certification regulations. The exceptions will completely swallow the rule.

We urge that this matter receive your immediate attention. If you so wish, we will readily offer a more extensive elaboration of our legal analysis of the relationship between the 745 Subpart L regulations and Local Law 38.

Yours truly,
Matthew J. Chachère, Esq.
Northern Manhattan Improvement Corporation Legal Services
(Counsel to NYCCELP )
76 Wadsworth Avenue
New York, NY 10033-7000
212-822-8300
Leslie H. Lowe, Esq.
New York City Environmental Justice Alliance
115 West 30th Street
New York, NY 10001
212-239-8882
Joel Shufro
New York Committee for Occupational Safety and Health (NYCOSH)
275 7th Avenue, 8th Floor
New York, NY 10001
Dr. Cathey Falvo
Physicians for Social Responsibility - New York City
475 Riverside Drive, Suite 511
New York, NY 10115
Andrew Goldberg, Esq.
New York Public Interest Research Group (NYPIRG)
9 Murray Street
New York, NY 10007
Brenda Morrow
Alliance for Consumer Rights
132 Nassau Street, 2nd floor
New York, NY 10038
Jenny Laurie
Metropolitan Council on Housing
64 Fulton Street, Room 401
New York, NY 10038
Michael McKee
New York State Tenants and Neighbors Coalition, Inc.
505 8th Avenue, 24th Floor
New York, NY 10018-6505
Sara Rios, Esq.
Puerto Rican Legal Defense and Education Fund, Inc.
99 Hudson Street
New York, NY 10013
Elizabeth C. Yeampierre, Esq.
United Puerto Rican Organization of Sunset Park (UPROSE)
5417 4th Avenue
Brooklyn, NY 11220
Mae Lee
Chinese Progressive Association
83 Canal Street, Room 304
New York, NY 10002
Joe Perez
Justicia Ambiental Latina
P.O. Box 53
Bronx, NY 10454
Carlos Padilla
South Bronx Clean Air Coalition
2417 3rd Avenue
Bronx, NY 10451
Charles Barron
East New York United Front
26 Court Street, Suite 2402
Brooklyn, NY 11242-1124
Majora Carter
The Point CDC
940 Garrison Avenue
Bronx, NY 10474
John Culpepper
Lower Washington Heights Neighborhood Association, Inc.
501 West 156th Street, Suite 31
New York, NY 10032
Sam Hirsch
Greater New York Labor-Religion Coalition
51 East 12th Street, 10th Floor
New York, NY 10003
Lynn Weikart
City Project
350 Broadway, Suite 525
New York NY 10013
Andrew Friedman, Esq.
Make the Road by Walking, Inc.
301 Grove Street
Brooklyn, NY 11237
Luis Garden Acosta
El Puente of Williamsburg
211 South 4th Street
Brooklyn, NY 11211
Maureen Silverman
Sinergia
902 Amsterdam Ave
New York, NY 10025

encls.:
Matthew Chachère and Leslie Lowe letter (January 10, 2000) to Region 2 Administer Jeanne Fox
Ken Stoller (Region 2) letter (January 28, 2000) to Matthew Chachère and Leslie "Howard"
Local Law 38 of 1999

cc: Vice President Albert Gore, Jr
Hon. Gregory W. Meeks
Hon. Jerrold L. Nadler
Hon. Edolphus Towns
Hon. Major R. Owens
Hon. Nydia Velázquez
Hon. Carolyn B. Maloney
Hon. Charles B. Rangel
Hon. José E. Serrano
Hon. Eliot L. Engel
Hon. Nita M. Lowey
Hon. Jeanne M. Fox
Kenneth S. Stoller

NOTES

1. Lead-based paint hazards are defined by 40 CFR 745.223 as "any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects as identified by the [EPA] Administrator pursuant to TSCA section 403."

2. While the federal definition of lead paint hazards includes those, such as dust and soil, that may be reduced or eliminated on a temporary basis, Local Law 38 limits its concern to hazards that must be cured permanently. Local Law 38 (in 27-2056.1(a)) defines a "lead-based paint hazard" as follows:

"(2) 'Lead-based paint hazard' shall mean (i) paint that is lead-based paint that is peeling on any surface in a dwelling unit in a multiple dwelling, in which dwelling unit a child under six years of age resides or (ii) paint that is presumed to be lead-based paint pursuant to section 27-2056.4 of this article that is peeling on any surface in a dwelling unit in a multiple dwelling, in which dwelling unit a child under six years of age resides or (iii) paint that is either lead-based paint or presumed to be lead-based paint pursuant to section 27-2056.4 of this article and is on a deteriorated subsurface in a dwelling unit in a multiple dwelling in which dwelling unit a child under six years of age resides." (emphasis added)

In short, since there is no temporary measure to cure this violation, the work must constitute a permanent measure and therefore an "abatement." Moreover, Local Law 38 mandates a permanent removal of the condition that constitutes the violation, namely it requires the landlord to "wet-scrape" the peeling paint from the wall. 27--2056.2(a)(4), 27--2056.5(b)(4). The peeling lead paint is not re-affixed to the wall -- it is permanently removed.

3. In the vast majority of circumstances, no lead dust clearance testing will be required under the new law. The failure to do so will undoubtedly increase the number of instances where homes of young children are left with hazardous lead dust. As HUD declared recently:

"[Numerous] studies demonstrate that without clearance testing and without adequate dust-lead standards, children's blood lead levels may worsen as a result of lead-based paint hazard control work in housing. Therefore, HUD has provided for clearance testing when lead hazard control work is done in housing covered by this rule." (emphasis added).

Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in Federally Owned Residential Property and Housing Receiving Federal Assistance; Final Rule 64 F.R. 50140, 50180 (1999)

4. Indeed, an EPA pamphlet (developed as required by 15 USC 2686), which presumably has already been distributed to millions of people by sellers and lessors of real property (as required by 24 CFR 35.88 ), plainly states, in large, bold letters:

"Removing lead improperly can increase the hazard to your family by spreading even more lead dust around the house. Always use a professional who is trained to remove lead hazards safely."

EPA737-K-99-001 , Protect Your Family From Lead In Your Home, April 1999 (emphasis added).