The Role of Municipalities in Preventing Childhood Lead Exposures
It is well known that lead is highly toxic and harmful to people, especially children. Unfortunately, because of its aging housing stock, New Hampshire is experiencing childhood lead poisoning at a rate nearly twice the national average. Among the several hundred documented cases of lead poisoning each year in the Granite State, it is estimated that a significant number of children are poisoned as a result of unsafe renovation, repair, or painting activities. While the U.S. Environmental Protection Agency (“EPA”) has established a federal regulatory program to prevent unsafe practices and associated lead exposures, municipalities can play a critical role in improving local compliance with that program and, in the process, protecting the health of our children. This article discusses important steps municipalities can and should take to help address New Hampshire’s lead crisis.
New Hampshire has a Lead Problem, and It’s Putting Children at Risk
More than sixty percent of New Hampshire’s housing stock was built before 1978, the year when lead-based paint was prohibited.[i] Although New Hampshire recently made progress strengthening its lead laws – for example, by requiring all one- and two-year-old children to be tested for lead, and by establishing a more protective regulatory action level to investigate and address cases of lead poisoning – preventing children from being exposed to lead remains a challenge.
Exposures to lead often happen as a result of common lead hazards, such as peeling, chipping paint, and friction points, such as windows and doors, that generate nearly invisible lead dust from surfaces containing lead-based paint.[ii] But exposures also happen as a result of unsafe renovation, repair, and painting practices that disturb lead-based paint, creating dangerous conditions for children and families. In fact, it is estimated that one out of every three cases of childhood lead poisoning in New Hampshire may be caused by practices that are not lead-safe.[iii] An important way to prevent childhood lead poisoning is to ensure that contractors follow lead-safe practices, as required by the EPA’s Renovation, Repair, and Painting regulatory program.
EPA’s Renovation, Repair, and Painting Regulatory Program
In 2008, the EPA established the Renovation, Repair, and Painting (“RRP”) regulatory program, which requires contractors (including painters, renovators, and electricians) and landlords to be trained and certified in lead-safe practices to lawfully work on projects that disturb lead-based paint in homes, child care facilities, and schools built before1978.[iv] EPA administers and enforces RRP from its regional offices throughout the country and has authorized a small number of states to administer and enforce their own RRP programs.[v] New Hampshire has not sought authorization to establish its own RRP program. Accordingly, EPA administers and enforces the RRP Rule from its Region 1 office in Boston.[vi] Given the large geographic scope of EPA’s responsibilities under the RRP Rule, municipal officials – with their on-the-ground presence and interactions with the contractor community – can and should serve an important role in improving local compliance with the RRP program and, in the process, preventing cases of childhood lead poisoning.
The Municipal Permitting Process Provides A Key Opportunity to Improve RRP Compliance
Through the local building permit process, municipal officials are uniquely positioned to know, and interact with, the local contractor community. One of the easiest actions a municipality can take to combat unsafe lead practices is to require contractors, in applying for building permits, to verify that they are RRP certified.[vii] This simple requirement – specifically, requiring building permit applicants to provide the RRP certification number of relevant contractors on the project – ensures that contractors working on projects which pose a lead-poisoning risk are properly trained in accordance with the RRP Rule. The Town of Sugar Hill, NH has taken this important step, requiring building permit applications to include RRP certification numbers for either the firm or individual working on the project.[viii] This requirement does not add to contractors’ existing regulatory obligations. Rather, it simply uses an important transaction point – application for a local building permit – to ensure contractors are aware of the RRP Rule and have obtained the required training and certification in lead-safe practices.[ix]
In addition to improving RRP compliance and preventing cases of childhood lead poisoning, incorporating proof of RRP certification in municipal building permit applications evens the playing field within the contractor community. Specifically, it ensures that contractors who are complying with the law are not forced to compete with contractors who, by not following lead-safe precautions, may offer lower-cost services.[x]
Speaking to the importance and value of this simple step that municipalities can take, the code enforcement manager for Rochester, New York (a city nationally recognized as a pioneer in local action to prevent lead poisoning) has stated: “One of the smartest things we ever did was put on our permit applications the requirements for the RRP certification.”[xi] In addition to this simple action, municipalities can engage in targeted outreach to contractors, as well as to the owners of rental properties suspected to contain lead-based paint, and provide subsidized or free RRP trainings.
Health Officers Can and Should Help Prevent Lead Poisoning and Improve RRP Compliance
Health officers possess broad powers to protect the health and safety of the people in their community by enforcing local health ordinances and addressing nuisances.[xii] Not surprisingly, they are considered by the NH Department of Health and Human Services to be important partners in addressing the problem of childhood lead poisoning.[xiii]
Given the geographically remote nature of EPA’s RRP enforcement staff, municipal health officers can serve as on-the-ground “eyes and ears” with respect to RRP compliance. Specifically, EPA relies on local observers to alert them to RRP violations; consistent with this need, the Department of Health and Human Services encourages municipal health officers to collaborate with the EPA to “report and stop activities occurring in violation of the Renovation, Repair and Painting Rule.”[xiv] In at least one community, the city of Portsmouth, health officers regularly exercise their powers to stop projects that are not complying with RRP and jeopardizing the public health.[xv] Complaints about lead-based paint violations are treated as priority calls in Portsmouth, resulting in an immediate visit to the site by the city’s code enforcement officer and, when lead-safe requirements are not being followed, an order to stop the project and clean up paint chips or other sources of lead exposure, and notification to the EPA.[xvi]
More municipalities and health officers should follow the City of Portsmouth’s approach – exercising their authority to stop projects that are putting the health of children and families at risk and notifying EPA of RRP violations in need of enforcement (EPA’s tip line is (617) 918-8477). Of course, to be most effective in this role, health officers themselves should be trained under the RRP program. As is the case with contractors, RRP training consists of a single, 8-hour course from an accredited trainer. The cost from one such trainer in New Hampshire is just $240, and scholarships may be available to municipal officials for a reduced fee.[xvii]
Tackling Childhood Lead Poisoning Together
Preventing childhood lead poisoning is no easy feat, especially in a state like New Hampshire with a large proportion of pre-1978 housing. Rather, it’s a challenge requiring multiple solutions at multiple levels of government – federal, state, and local. While one might think local communities can have no impact on the EPA’s RRP regulatory program, municipalities can – and should – take action to prevent lead exposures from unsafe renovation, repair, and painting practices. Through building permit applications and the training and involvement of health officers, New Hampshire cities and towns can help ensure lead-safe practices and, in the process, help secure a brighter future for our kids.
Tom Irwin is Vice President and Director of Conservation Law Foundation in New Hampshire. Having joined CLF in 1998, Tom has led a number of advocacy initiatives in New Hampshire over the years, including CLF’s initiative to tackle the problem of childhood lead poisoning. He may be reached by phone at 603.573.9139 or via email at firstname.lastname@example.org.
Stephan Maranian is a student at Suffolk University Law School (J.D. Candidate 2023), where he serves as president of the Environmental Law Society. He was CLF New Hampshire’s Cavers Intern during the summer of 2021.
Philip Harrison Elbert graduated from Vanderbilt Law School in 2021. He is currently an intern at CLF New Hampshire through Vanderbilt Law School’s Public Service Pathways Fellowship.
[ii] While many people perceive lead to be an issue of the past, approximately 24 million housing units in the United States have significant lead-based paint hazards. See Centers for Disease Control and Prevention, Childhood Lead Poisoning Prevention (2020), https://www.cdc.gov/nceh/lead/prevention/sources/paint.htm
[iii] 2020 Lead Exposure in New Hampshire, Data Brief, p. 4 (https://leadfreekidsnh.org/wp-content/uploads/2021/12/2020-AAG-FINAL-DIGITAL.pdf).
[iv] EPA, Lead Renovation, Repair, and Painting Program, (last visited Nov. 30, 2021) https://www.epa.gov/lead/lead-renovation-repair-and-painting-program.
[v] Alice Kreher, Lead-Safe Renovation, Repair, and Painting Activities in New York State: Analysis of the Proposal for State Management of the RRP Rule, Community Foundation for Greater Buffalo (2020) https://ppgbuffalo.org/files/documents/lead_rrp_activities_in_nys.pdf
[vi] National Center for Healthy Housing, States Authorized by EPA to Manage the RRP Rule (last visited Nov. 30, 2021) https://nchh.org/information-and-evidence/healthy-housing-policy/national/keystone-federal-policy/rrp/authorized-states/#:~:text=EPA%20has%20delegated%20authority%20to,Georgia%2C%20Oklahoma%2C%20and%20Delaware.
[vii] National Center for Health Housing, Lead Legal Strategies Partnership Technical Assistance Tool Opportunities to Strengthen Local Lead-Related Policies: RRP Certification (2020) https://nchh.org/resource-library/technical-assistance_opportunities-to-strengthen-local-lead-related-policies_rrp-certification.pdf.
[viii] Sugar Hill, N.H., Building Permit Application (2021).
[ix] Amanda Reddy, How Municipalities Can Leverage RRP Requirements to Advance Lead Poisoning Prevention, National Center for Healthy Housing (2021) https://nchh.org/2021/02/how-municipalities-can-leverage-rrp-requirements-to-advance-lead-poisoning-prevention/.
[xii] See RSA 128:5, I (providing that the town health officer shall enforce the public health laws and rules.”); RSA 128:5, III (town health officers “[m]ay, upon reasonable information, personal knowledge or belief, in order to safeguard public health . . . , enter upon private property, but not into any living quarters, to investigate and, if necessary, take appropriate action to prevent further pollution.”); RSA 147:1 (“The health officers of towns may make regulations for the prevention and removal of nuisances, and such other regulations relating to the public health as in their judgment the health and safety of the people require”); RSA 47:17-XIV (“The city councils shall have power to…abate and remove nuisances”). Although some of these statutes refer only to towns, New Hampshire cities are given “all the powers vested by law in towns.” NH Municipal Ass’n, “Knowing the Territory: A Survey of Municipal Law for New Hampshire Local Officials,” 21 (2020). In the public health context, this means that city councils are given all of the powers that the statutes otherwise give town health officers. City councils themselves determine the structure and organization of the health boards/officers for the city rather than following the guidelines of the NH Department of Health and Human Services.
[xiii] NH DHHS Health Officer Manual (2021), Lead Poisoning & Housing.
[xiv] NH DHHS, Lead Poisoning & Housing, 1, Health Officer Manual (2021)
[xv] Interview of Robert P. Sullivan, City Attorney, City of Portsmouth, and Kim I. McNamara, Portsmouth Health Department (July 21, 2021). See also, Jeff McMenemy, City notifies EPA of lead paint infractions, Seacoast Online, (July 29, 2014) https://www.seacoastonline.com/article/20140729/NEWS/407290369.
[xvi] Interview of Robert P. Sullivan, City Attorney, City of Portsmouth, and Kim I. McNamara, Portsmouth Health Department (July 21, 2021).