Lead-Safe Housing in Rhode Island:
Lead-Hazard Notification and Disclosure,
Rights of Tenants, and Conflicting Standards of Care

Alexandra Foote

Lead poisoning is a widespread and serious public health problem in Rhode Island, particularly in Providence.  It has serious, long term, irreversible effects on children and is completely preventable.  The main purpose of my thesis was to search for ways to reduce the risk of childhood lead poisoning using the existing legal authority in Rhode Island.

Both the federal government and the State of Rhode Island require notification and disclosure of known or potential lead hazards in home sale or rental transactions, in both verbal and written leases.  Landlord compliance with state and federal lead hazard notification and disclosure laws is important because childhood lead poisoning often results from tenant ignorance of any specific lead hazard.  One of my objectives was to discuss and analyze the effectiveness of laws regarding disclosure and notification of lead hazards and to link disclosure violations to tenant’s rights.  Everyone I interviewed from Childhood Lead Action Project, Heath and Education Leadership for Providence, the Rhode Island Department of Health (RIDOH), and even the RI Attorney General's office concur that it is unlikely that landlords are complying with notification and disclosure requirements in RI at tenant turnover.  I hoped to but did not find a remedy for violation of disclosure in the case of subsequent lead poisoning within RI landlord/tenant law.

I examined the legal framework available to force lead remediation of rental housing in Rhode Island through rent withholding, injunctive relief, and new landlord incentives and sanctions.  I attempted to identify conditions under which tenants are likely to exercise

their rights and protect their children independent of the enforcement efforts of city code enforcement and RIDOH, in the belief that this approach to the lead-poisoning problem would give landlords an additional incentive to achieve compliance with the law.  The reality I discovered outside and inside the legal framework, however, posed challenges to my initially idealistic view of the law as a sweeping and powerful remedy to the complex issue of childhood lead poisoning.

A landlord is legally obligated to comply with housing codes affecting health and safety, make all repairs, keep the premises in a fit and habitable condition, as well as keep all common areas in a clean and safe condition.  Although parents have the responsibility to keep their homes clean, no amount of cleaning or wet dusting will fix a flaking and peeling lead paint problem.  The duty to fix such a hazard is the landlord's.

If a landlord does not comply with their responsibility under the law, a tenant has the right to withhold rent.  The landlord is extremely likely to bring an eviction proceeding against the tenant once he/she stops paying rent.  In many cases after a landlord receives a notice of violation from the DOH, the landlord will illegally attempt to evict the tenants or raise their rent to get them out to avoid the cost of abatement presuming that if the child moves, the case might be closed.  Tenants unaware of their right to lead-safe housing and often under duress by the landlord, move out and into other apartments that can be as hazardous as the one they just vacated.  None of the families I interviewed for this thesis were aware of their rights as tenants, and the caseworkers from HELP unanimously agree that the families they work with tend to be overwhelmingly nescient of their rights.  In some cases of lead poisonings or other serious code violations, tenants choose to stop paying rent to save enough money to move to another apartment with the rent they have withheld, challenging any eviction action that may occur long enough to get out.

The most substantial obstacle to tenants using the legal system is lack of information.  Then, the burden of proof, lack of legal representation, and comparative ease of simply moving on to a different residence, make it less likely that people will challenge landlords in court, even if they know it can be done.  No tenant advocacy systems exclusively focus on lead hazards or disclosure as an aspect of housing in Rhode Island.  Lead poisoning as a housing issue should force a resurgence of tenant advocacy as one of many remedies for the complex issue of childhood lead poisoning, but it in itself is not a panacea, because it is much easier for a tenant to move than to challenge a landlord under the existing legal framework.  Instead of encouraging tenants to exercise their legal rights, I recommend lead advocacy groups establish a lead-safe housing registry, assist the Attorney General's Office in efforts to change RI law to have the Attorney General appoint receivers for properties in violation of lead laws, pursue repeal of the Homestead Exemption for non-compliant landlords, lobby to change the current RI lead law to impose a landlord duty to inspect properties for lead, and examine the option of changing enforcement of lead laws from Housing Court to Environmental Court.

Besides tenant's rights, disclosure, and enforcement, I examined proposed federal standards for lead levels in household dust and soil and compared them to existing standards in Rhode Island.  The purpose of this part of my thesis was to determine the impact and significance that the proposed EPA standards would have for RI.  Using the RIDOH database of inspections including lead levels in household dust and soil from 1993-1998, my first question was to determine whether any properties that had been abated under RI regulation would not have needed abatement under the proposed EPA standard.  I found this occurred only in the case of soil abatement, where the EPA standard requires abatement if soil is over 2000 parts per million (ppm) while RI requires abatement for soil beginning between 500 and 1000 ppm. The EPA classifies any soil concentration over 400 ppm as a level of concern, but only recommends interim measures such as cover (paving) or planting of grass.  However, any soil over 2000 ppm must be removed.  RI does not require removal of soil unless it exceeds 10,000 ppm. 

I analyzed 280 addresses with soil samples.  I found 132 addresses that would pass the EPA soil standard (soil-lead concentration below 2000 ppm) and 91 cases that would also pass the RI standard (soil-lead concentration below 1000 ppm).  I found 41 addresses that would require abatement under the RI standard but not the EPA standard.  In addition, I found 56 addresses in excess of 10,000 ppm requiring removal under both regulations.  92 addresses (33% of properties with soil samples) require soil removal under the EPA standard but not the RI standard.  These 92 addresses would need to have soil removed and disposed of as hazardous waste under the EPA standard at an average cost of $3600 per property.

The second evaluation I made of the proposed EPA standard was to search for properties that did not violate RI regulations but that would require abatement under the proposed federal standard for lead in household dust. upon initial inspection.  Only 1 of 84 addresses would require abatement under the EPA standard but not RI.

My next question was to ask if the EPA standard of 50 micrograms per square foot (mg/ft²) for floors and 250 mg/ft² for sills would be significant for clearance in properties that had already been abated.  I asked if abated properties would pass the proposed EPA standard.  I found that 145 addresses failed the floor standard and 15 failed the window sill standard (16 failed both).  50 of these properties, however, also did not pass the RI floor or window sill standard (they had floor samples in excess of 200 mg/ft² or sill samples in excess of 500 mg/ft² ).  The fact that 69% of the cases that would not pass the EPA standard due to the floor sample dust lead level is significant; it demonstrates where difficulty in meeting the new EPA dust standard will most likely be.