Back to the future: Fixing the Lead Poisoning Prevention Program Act by partial repeal

University of Baltimore Journal of Environmental Law

Volumn 9, Issue 2, 2002, Pages 108-123

  Harris, Terry J ^a   Smith, Lisa J ^a,b  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

^b Saul E Kerpelman and Associates   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

LEAD; POISONING;

EID: 15944372312     PISSN: 10626212     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (114)

1. Lead Poisoning Prevention Program Act, 1994 Md. Laws 114 (codified as Md. Envtl. Code Ann. §§ 6-801 to 6-852 (1994)).
2. Md. Env. Code Ann. § 6-802 (2001).
3. Centers for Disease Control and Prevention, U.S. Dept. of Health & Human Services, Strategic Plan for the Elimination of Childhood Lead Poisoning, 4-6 (1991) [hereinafter Strategic Plan].
4. Id. at 5. The Court of Appeals has accepted expert testimony regarding average IQ loss in cases of lead-based paint poisoning. An expert discussed U.S. studies that show that lead poisoning can result in up to four to six points loss in IQ. See Richwind Joint Ventures 4 v. Brunson, 96 Md. App. 330, 336-39, 625 A.2d 326, 327 (1993), rev'd on other grounds, 335 Md. 661, 687-88, 645 A.2d 1147, 1159 (1994).
5. U.S. Dept. of Health and Human Services, Public Health Service Agency for Toxic Substances and Disease Registry, Case Studies in Environmental Medicine: Lead Toxicity (1990) [hereinafter Case Studies].
6. C.F.R. § 1303.4 (1977). Lead-based paint was banned for consumer use effective Jan. 17, 1978, which was "in excess of 0.06 percent of the weight of the total nonvolatile content of the paint or the weight of the dried paint film." Id. § 1303.1.
7. Md. Dept. of Env. Lead Poisoning Prevention Program, Childhood Blood Lead Surveillance in Maryland 1999 Annual Report, Executive Summary i [hereinafter 1999 Annual Report].
8. Id. at 1.
9. Coalition to End Childhood Lead Poisoning (accessed April 6, 2002).
10. Ibid. Id.
11. The Lead Poisoning Resource Center (accessed April 6, 2002).
12. Ibid. Id.
13. Ibid. Id.
14. Ibid. Id.
15. Ibid. Id.
16. The treatment was described as "a form of ritual torture" in a recent newspaper article on lead paint poisoning: In the 1950's, Chrisolm had pioneered a safe treatment for severely poisoned children that saved the lives of hundreds worldwide. Using two chemical agents, one of which had been developed by British scientists during World War II as a nerve gas antidote, doctors were able to flush the lead from childeren's bodies. The treatment has two drawbacks. In addition to lead, one of the chemicals also flushes out vital minerals such as iron, zinc, magnesium and calcium, leaving patients weak. And it requires a form of ritual torture: a dozen or more deep muscle injections every day for up to a month. "They would stick four needles in her at a time," Richter recalls. "In her arms, her heinie, her thighs, her legs. Pretty soon, they were running out of places to stick them. She was there three weeks, and by the end they were sticking them in her neck." The children in the lead treatment clinic at Kennedy Krieger called it "hurty time." "We'd see them nurses coming with the medicine trays and we'd scatter," Kress remembers. "We'd hide under our beds or lock ourselves in the bathroom. They had this phone booth on the ward -- the old kind with the folding -- doors and I used to run in there and sit on the floor with my feet againts the door so they couldn't get me. But you had to come out sooner or later, and when you did they'd drag you into the playroom for your shots so the other kids on the ward wouldn't have to see you cry." Jim Haner, Lead's Lethal Passage: One Family's Anguish, The Baltimore Sun A1 (Sept. 10, 2000).
17. Ibid. Id.
18. Ibid. Id.
19. Ibid. Id.
20. Ibid. Id.
21. Environmental Defense Fund, Legacy of Lead: America's Continuing Epidemic of Childhood Lead Poisoning: Executive Summary A1 (1990).
22. Kennedy Krieger Institute, Treatment for Lead-Exposed Children, Clinical Study Website (accessed Feb. 6, 2002). The institute recently studied the effectiveness of succimer, an oral chelation agent.
23. Md. Env. Code Ann. §§ 6-801 et seq. (2001).
24. Id. § 6-828 (b). From Feb. 24, 1996 to Feb. 23, 2001, the threshold blood lead level was greater than or equal to 25 mu G/DL. On or after Feb. 24, 2001 the threshold level is greater than or equal to 20 mu G/DL. Id.
25. Strategic Plan, supra n. 3, at 5. Mu G/DI, refers to the "quantity of lead in whole venous blood expressed in micrograms per deciliter." Md. Env. Code Ann. § 6-801(f).
26. Centers for Disease Control and Prevention, U.S. Dept. of Health & Human Services, Preventing Lead Poisoning in Young Children, (1991) [hereinafter Lead Poisoning].
27. See Bruce P. Lanphear, et al., Cognitive Deficits Associated with Blood Lead Concentrations <10 mu g/dL in US Children and Adolescents, 115 Public Health Reports, 521-29 (Nov./Dec. 2000).
28. Bartholomee v. Casey, 103 Md. App. 34, 38, 651 A.2d 908, 909 (1994) (jury award of $225,000 for damages);
29. Richwind Joint Venture 4 v. Brunson, 96 Md. App. 330, 333, 625 A.2d 326, 327 (1993) (jury award of $252,000 and $247,500 to two children);
30. Hardy v.Griffin, 569 A.2d. 49, 52 (Conn. 1989) (award of $828,626 and $152,766 in interest);
31. Miller v. Beaugrand, 564 N.Y.S.2d. 390 (1991) (award of $1,700,000).
32. 1999 Annual Report, supra n. 7.
33. Id. at table 2.
34. Ibid. Id.
35. Id. at 1.
36. Ibid. Id.
37. Id. at table 5. The Report points out, however, that the gross statistics can be misleading. While the data might suggest reduced lead exposure, it might also suggest increased blood lead testing in lower risk areas.
38. Md. Env. Code Ann. §§ 6-835, 6-836 (2001).
39. Id. § 6-811(b)(6).
40. Id. §§ 6-801(b)(1)(i), (ii), 6-801(m)(2), 6-836.
41. Id. §§ 6-811, 6-819, 6-823.
42. Id. § 6-819(b)(2)(i).
43. Id. § 6-819(c)(1)(i).
44. Id. § 6-819(c)(2).
45. Id. § 6-817 (b)(1).
46. Id. § 6-836.
47. Id. §§ 6-828 and 6-836.
48. Id. § 6-840(a)(1), (2).
49. Id. § 6-828.
50. Id. § 6-834. This provision is subject to § 6-833 or a separate agreement between the landlord and tenant.
51. Id. § 6-836.
52. Id. § 6-838.
53. Statistics provided by the Md. Dept. of Env. Registry Office on April 5, 2002. The percentage of units was calculated based on 1990 U.S. Census data on the total number of units in the respective jurisdictions.
54. Ibid. Id.
55. Coalition to End Childhood Lead Poisoning (Baltimore, Md.), Qualified Offer Counseling Service 2000 Annual Report. [hereinafter Qualified Offer]. Information verified by the Coalition, Mr. Stewart, on April 9, 2002. Statistics do not include all rental properties but residences of those poisoned at 20 mu G/DL or higher.
56. An additional problem with fraudulent certification is that owners can certify, and have certified, their own properties as compliant with the law. While this is apparently legal under the LPPA Act and MDE regulations, it seems inappropriate, and one could not imagine a more typical example of the fox guarding the hen house. It serves as one more reason why it is essential for plaintiffs to be able to investigate and challenge compliance in court.
57. There was some initial confusion in Baltimore City about how to proceed when plaintiffs challenged landlords' claims of compliance or the validity of a risk-reduction certificate. The defendant landlords seemed to think waving the certificate in court would be enough. However, the circuit court decided in one early case that, for due process reasons, plaintiffs must be allowed to challenge the landlord claims of compliance. Gaines v. Stricker Street, Case No.: 24-C-97-237-016. Circuit Court for Baltimore City, oral opinion of the Honorable David B. Mitchell denying the Defendants' Motion to Dismiss, entered on April 24, 1998 and ordered on April 28, 1998.
58. Qualified Offer, supra n. 51.
59. Id. Offers that are known by MDE through copies of offers sent to the local health department.
60. Ibid. Id.
61. Ibid. Id.
62. 1994 Md. Laws 114.
63. Qualified Offer, supra n. 51. Insurers paid 40% of benefits while owners paid 60% in the 43 cases, in which offers were accepted.
64. Ibid. Id.
65. Md. Env. Code Ann. § 6-828(b) (1994).
66. Ibid. Id.
67. Centers for Disease Control and Prevention, U.S. Dept. of Health and Human Service, Preventing Lead Poisoning in Young Children, 8-9 (Oct. 1991).
68. See Md. Env. Code Ann. § 6-828 (b)(1)(ii). As of February 24, 2001, the level dropped to 20 mu G/DL. The arguments remain the same.
69. In the author's opinion, a plaintiff child might present these alternative arguments if a court were to find that the landlord complied with the LPPA Act. Practitioners report, however, that very often the landlord fails to meet the requirements of several provisions of the Act, allowing many cases to proceed in tort making the constitutional arguments unnecessary.
70. Md. Env. Code Ann. § 6-828 (2001).
71. Some possible challenges could be based the right to court access, the right to a remedy, and perhaps the right to jury trial. Alan Mensh, Esq., of Ashcraft & Gerel, LLP (Baltimore Law Firm), laid the foundation of these constitutional arguments, as well as, the equal protection arguments discussed herein, several years ago in motions practice in the Circuit Court for Baltimore City.
72. The Due Process Clause of the Maryland Constitution, contained in Article 24 of the Declaration of Rights, follows the same concept of equal protection as the Equal Protection Clause of the Fourteenth Amendment. Hargrove v. Bo~rd of Trustees, 310 Md. 406, 416, 529A.2d 1372, 1377 (1987), cert. denied 484 U.S. 1027 (1988); Attorney General of Maryland v. Waldron, 289 Md. 683,426 A.2d 929 (1981).
73. See Md. Env. Code Ann. § 6-828(b).
74. The LPPA Act's mandatory registration provisions apply only to properties built before 1950, even though lead paint was not banned for residential use by federal law until 1978.
75. At the very least, the law discriminates unambiguously between those lead-poisoned children with blood lead levels of 20 mu G/DL and those with, for example, 19 mu G/DL. As this article points out, one would be hard pressed to find a rational basis for that particular distinction. To address the dual purposes of preventing childhood lead poisoning or the purpose of providing affordable housing, the law is clearly under-inclusive. A rational tailoring would suggest that all lead poisoned children should either be subject to the law or they should not.
76. Murphy v. Edmonds, 325 Md. 342, 354-57, 601 A.2d 102,108-09 (1992).
77. City of Richmond v. J.A. Croson Co., 488 U.S.: 469,490-91 (1989).
78. It is estimated that 70% of poor African American urban children under the age of six are at risk for lead poisoning. Environmental Defense Fund, Legacy of Lead: America's Continuing Epidemic of Childhood Lead Poisoning: Executive Summary A1 (1990). In a six year survey (National Health and Nutrition Examination Survey III) from 1988-1994, the Centers for Disease Control and Prevention (CDC) and the National Center for Health Statistics measured the health of the civilian population two months of age and older. The survey found that the prevalence of elevated blood lead levels among one to two-year old non-Hispanic black children was 2.5 times higher than for white children. Debra J. Brody et al., Blood Lead Levels in the U.S. Population, 272 J. Am. Med. Assn. 277, 279 (1994). According to the U.S. General Accounting Office, the prevalence of elevated blood lead levels in non-Hispanic black children (21.9%) living in housing built before 1946 was nearly four times that of non-Hispanic white children (5.6%). Advisory Committee on Childhood Lead Poisoning Prevention, Recommendations for Blood Lead Screening of Young Children Enrolled in Medicaid: Targeting a Group at Risk. CDC, U.S. Dept. of Health and Human Services, MMWR 49 (RR14), 1-13 (2000).
79. See Washington v. Davis, 426 U.S. 229 (1976);
80. Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977).
81. See U.S. v. Carolene Products, 304 U.S. 144, 153 (1938) (suggesting that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."). "Whenever evolving principles of equality, rooted in the Equal Protection Clause, require that certain classifications be viewed as potentially discriminatory and when history reveals systemic unequal treatment, more searching judicial inquiry than minimum rationality becomes relevant." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 470 (1985).
82. Ellen Silbergeld, A Necessary Paradox; Research Has Some Risks. But It Is Good for US., The Washington Post B5 (Sept. 2, 2001) (available in 2001 WL 23191432).
83. Ibid. Id.
84. Ibid. Id.
85. Ibid. Id.
86. Ibid. Id.
87. Ibid. Id.
88. Case Studies, supra n. 5.
89. Broadwater v. State, 306 Md. 597, 603, 510 A.2d 583, 586 (1986).
90. Murphy v. Edmonds, 325 Md. 342, 358, 601 A.2d 102, 110 (1992) (semi-suspect classifications are: gender, illegitimate children and differentiation of children of legal and illegal residents regarding access to public education). Id. at 357, 601 A.2d at 110
91. The statute's purpose section is found at Md. Envtl. Code Ann. § 6-802(2001).
92. See Md. Env. Code Ann. §§ 6-815 and 6-819(a) (risk reduction).
93. The LPPA Act is arguably arbitrary in that it singles out one group of personal injury claimants. See id. §§ 6-835, 6-836. Affordable housing can be impacted by other tort claims against landlords. The limitation of liability in the LPPA Act singles out lead poisoned children from all other personal injury claimants, unlike,the statutory non-economic damages cap of $350,000 found constitutional in Murphy v. Edmonds. In Murphy, the Court of Appeals used the very fact that the law failed to single out a category of claimants to support its decision that the cap was not arbitrary. Murphy, 325 Md. at 362, 601 A.2d at 111-112.
94. See Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985).
95. CDC, Lead Poisoning, supra n. 26.
96. Md. Env. Code Ann. §§ 6-835, 6-836.
97. See id. §§ 6-831 to 6-836.
98. 1994 Md. Laws 114. The law seems to encounter the same problem that the Court of Appeals found so unethical in Grimes v. Kennedy Krieger Institute, Higgins v. Kennedy Krieger Institute, 336 Md. 29, 41 (2001). That is, it is unacceptable to allow children to live in housing possibly or probably lead contaminated.
99. Md. Envtl. Code Ann. § 6-802.
100. See id. §§ 6-815, 6-819.
101. Id. §§ 6-828, 6-835, 6-836.
102. Baltimore Housing Code Art. 13, §§ 702, 706 (1983 Repl. Vol.) and for example Code Md. ReRs. Title 26 §§ 02.07.03, 02.07.10 (2001). Chapter 7 of Subtitle 2 addresses lead abatement. Md. Envtl. Code Ann § 6-822 (a)(1), (2).
103. The Mayor's Initiative on Lead Poisoning Prevention in Baltimore City Phase II Overview LeadStat (accessed April 6, 2002).
104. Ibid. Id.
105. Ibid. Id.
106. Ibid. Id.
107. Rick Binetti and Tony White, Press Advisory: "Baltimore Leadstat Leads the Way For Healthier Families" (Jan. 12, 2001) (accessed April 6, 2002).
108. Ibid. Id.
109. Ibid. Id.
110. Staying the Course Against Lead Poisoning; Momentum: City and State Enforcers Must Keep the Pressure on Owners of Toxic Houses, The Baltimore Sun A8 (Jan. 2, 2002).
111. EPA and HUD announce landmark lead disclosure settlement, "More than 130,000 families in 47 states and D.C. will benefit." (Jan. 16, 2002) (accessed April 6, 2002).
112. See Coalition to End Childhood Lead Poisoning . Website includes: HUD's "Lead Safe America Campaign," EPA's "Runs Better Unleaded" campaign, "Pediatricians as Partners," "Baltimore Lead Hazard Awareness" program, the Maryland Lead Poisoning Prevention Partnership, and the "Safe at Home" program.
113. Alliance to End Childhood Lead Poisoning (accessed April 6, 2002). On the web site type "media" in search box then select "Baltimore Sun series on lead poisoning".
114. Staying the Course Against Lead Poisoning; Momentum: City and State Enforcers Must Keep the Pressure on Owners of Toxic Houses, Baltimore Sun A8 (Jan. 2, 2002).