LEAD LAW | PART I

Rochester’s lead law spurs success; Toledo tries similar effort

7/16/2017

BY LAUREN LINDSTROM
BLADE STAFF WRITER

Len Merritt, the Lead Paint Program coordinator in Rochester, N.Y., outlines the process his inspectors go through every time they take a look a rental property, like the one pictured.

THE BLADE/KATIE RAUSCH
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First of two parts; Part 2

ROCHESTER, N.Y. — At the end of a hours-long meeting that ran late into the night, city council members in Rochester unanimously voted in December, 2005, to adopt a controversial and novel ordinance aimed at reducing the number of children poisoned by lead in the city.

Now more than a decade and 141,000 inspections later, the number of children tested with lead poisoning in Rochester is less than a third of what it was the year the law passed.

“All of us feel a sense of ownership of this, that we did this together,” said Wade Norwood, whose last act in his 15-year tenure on Rochester council was to ensure the lead ordinance passed. “This was taking the city into uncharted territory.”

VIDEO: Rochester reflects on enacting a lead-based paint ordinance

Rochester’s lead law has served as a model for health and environmental researchers across the country, as well as municipalities looking for a model to follow, including Toledo.

A city of about 210,000 in upstate New York, Rochester had more than 1,000 children test positive with lead poisoning in 2003, two years before the ordinance passed. County health officials there identified children with blood lead levels of 10 micrograms per deciliter or greater, the Center for Disease Control and Prevention's level of concern at the time.

In Lucas County in 2015, there were 285 children with confirmed lead levels at or above the CDC's current poisoning threshold of five micrograms or greater, a level that was revised after researchers determined lead exposure has caused damage in smaller quantities than previously known. Another 211 children tested with preliminary elevated levels, but did not receive a second confirmatory test.

Efforts by local health and advocacy groups prompted Toledo City Council to approve in August, 2016, a first-in-Ohio lead ordinance requiring landlords of older rental properties to test for lead, legislation modeled after Rochester.

Among the myriad health issues associated with lead poisoning according to the Centers for Disease Control and Prevention: damage to a child’s brain and nervous system, slow growth and development, learning and behavior problems, and hearing and speech problems.

Rochester’s Coalition to Prevent Lead Poisoning, along with health and political officials, based their city’s law on prevention.

“Once a kid has lead in their blood, it affects how their bodies and brains develop; you can’t readily undo that damage. We’re really focused on preventing exposure in the first place,” said Katrina Korfmacher, an associate professor in the department of environmental medicine at the University of Rochester Medical Center and a member of the coalition since 2001.

“To do that, you really need policy change because we as a society allowed lead to be painted all over our older housing stock.” she said. “It’s not the fault of the people who live there now; it’s not the fault of the people who own the housing now; it’s a problem we all allowed to happen. But in order to keep that lead from getting into kids, we need to maintain housing in good condition so the paint is intact, so that you don’t have lead dust on the floors so it can get in kids’ mouths.”

Much like changes in laws and practices that now require seat belts or discourage smoking while pregnant, a better scientific understanding of lead’s danger should prompt policy change, said coalition member Elizabeth McDade, who is also ‎program coordinator for the Rochester Safe and Efficient Homes Initiative.

“Our law was based upon the idea that you can’t rent a property, a home to children that has a neurotoxin in it,” she said. “You can’t open a restaurant that has a bubbling cauldron of biohazard in the middle of the restaurant floor, they won’t let you do that. We know what the [lead] issue is, we know how to fix it, let’s do that.”

Lead checks added

The lead checks were added as a requirement in 2006 for rental properties as part of renewing required certificates of occupancy for rental properties.

High risk areas of the city where county health department records showed the highest rates of children with elevated blood lead levels were required to pass a visual and dust wipe test done by city inspectors.

“We were positioned a little better than most cities in that we always had this proactive approach to property inspections,” said Gary Kirkmire, director of inspection and compliance services for Rochester. “We already had built relationships with landlords for a very long time so that they knew what was expected, and if they did what was expected they didn't get ticketed.”

About 25,000 properties are covered under the ordinance, Mr. Kirkmire said.

The federal government outlawed lead paint for residential use in 1978; housing built before then is considered likely to contain lead. More than 90 percent of Rochester’s housing stock was built in 1979 or earlier, according to 2015 Census estimates.

City inspectors, as well as landlords, had to be trained to add the lead checks to existing procedures.

“It's easy to write an ordinance, write laws and regulations, the reasons why and the properties that will be affected, but it’s a lot different saying all of that and having it in writing and having people on the ground floor doing those types of inspections and tests,” said Len Merritt, lead paint program coordinator for the city.

Key differences

Key differences exist between Rochester’s law and Toledo’s.

While Rochester uses city inspectors for initial checks and private risk assessors for follow-ups if properties fail, Toledo’s law calls for all inspections to be done by private companies. There are approximately 90 registered lead inspectors with the required certification in Toledo, according to the Toledo-Lucas County Health Department.

The two laws also target slightly different rental units, though both emphasize pre-1978 structures. Toledo’s law covers rentals with one to four units and home day-care centers. Dust wipe tests are required for all applicable Toledo units, while Rochester requires them for identified “high-risk areas” where county health department data show high levels of poisoned children or to clear properties where hazards have been identified.

While Rochester’s lead checks were added to existing rental inspections to obtain certificates of occupancy, Toledo’s creates a new inspection for landlords.

Communication was key for Rochester’s success, Mr. Kirkmire said.

“We didn't just start talking about a lead ordinance in 2006 or 2005 when it was adopted,” he said. “We were talking about it and fully engaged as a community for several years before that.

“One of the things we saw right off the bat was people tailored their business models to meet expectations. Once you get past the whole dilemma past debate, discussion, frustration ... once you get past all that, the general rule of thumb in code enforcement is: landlords will adjust their business model to expectations as long as you communicate properly and partner with them.”

“The fear that was initially felt and projected by landlords was the cost, that they’re never going to pass wipe tests, they're never going to pass visual inspections ... those really proved to be false perceptions to a great extent,” Mr. Kirkmire said.

Ms. Korfmacher laughs when she admits how excited she was to be wrong about certain aspects of the law. A pilot study of 100 units in a high-risk area showed 95 percent of them had lead hazards.

“We thought compliance with this law is going to be really hard if we expect only 5 percent of units are going to pass,” she said. “Coming out of the gate, 90 percent of them passed. So it’s clear that our property owners are smart, they are good business people, they are adaptive, and once the city told them very clearly, this is the new standard.”

Though some property owners argued that high compliance rates showed the law was not necessary, Ms. Korfmacher said she believes the opposite is true.

“It’s clear from looking before 2005, it’s because of the lead law that the units are passing [at such high rates].”

In 2014, the number of children in Rochester with blood lead levels of 10 or higher dropped to an all-time low of 139, a dramatic drop from less than a decade earlier.

A study of the law’s first two years found repair costs were varied — about one-third of survey landlords spent no money preparing for, or responding to, an inspection, one-third spent up to $1,000, and one-third spend more than $1,000.

The average cost to clear a lead violation was $150, the survey found.

Landlords who had a favorable position of the law increased from 41 percent to 46 percent in that time, and many asked for more education and grant opportunities.

Despite initial investor feeling of being “nickeled and dimed,” the law has become just part of the cost of doing business, said Linda Wilson, president of the Greater Rochester Association of Realtors.

“I think with any new idea, people are going to resist it,” said Ms. Wilson, a landlord and Realtor for 30 years. Landlords expressed frustration at the beginning when a surge of inspection requests backed up appointments by weeks, delaying when they could lease a property.

“In the long run as it got better it was better for everybody,” she said. “I believe it helped our economy. People were buying properties here because we had to go through [inspections], they knew it was safe.”

Contact Lauren Lindstrom at llindstrom@theblade.com, 419-724-6154 or on Twitter @lelindstrom.