by Megan M. Hunter, Esq.*

*Admitted to practice law in New York

Lately we have heard a great deal about the lead poisoning of children in Flint, Michigan, which may have some wondering about lead in their own communities. According to Ohio’s Department of Health, lead poisoning is the greatest environmental threat to children in Ohio, and in the past 15 years 40,000 children have suffered lead poisoning in Cuyahoga County alone.

The Center for Disease Control has stated there is no safe level for lead in a child’s blood. However, Ohio’s administrative code defines lead poisoning as a confirmed level of lead in human blood of 5 micrograms per deciliter or greater.[1] Recent newspaper articles (see here and here) have suggested Ohio is failing to adequately address its lead hazard problems, and explained that delayed action is likely the result of low-income communities of color being the primary ones affected.

Lead exposure is one of many areas demonstrating the interconnection of environmental justice and reproductive justice. Infants, fetuses, young children, and pregnant women are most severely impacted by lead's toxic effects, which implicate almost every system in the human body. With lead exposure, we see an environmental harm primarily affecting modest-means communities and affecting those communities' ability to safely raise their children with dignity. As a Resident Attorney here at Fair Shake Environmental Legal Services, I am developing a practice to focus on needs such as this, where environmental harm implicates our abilities to raise our children safely in our own communities.

This article presents some of the responsibilities regarding lead required under Ohio law but is by no means exhaustive and is intended to be one in a series on addressing lead in Ohio. Please feel free to contact our office for further information regarding lead poisoning and rights and responsibilities under Ohio and federal law.

Responsibilities of Your Health Care Provider

For patients under the age of six, a primary care provider is required to determine whether the child has had a lead screening test, at what age the child had that test, and the test’s results.[2] The law defines primary care physician as anyone providing well child health care services (e.g. annual examinations and immunizations). This may include, but is not limited to, certified nurse practitioners, local health departments, hospitals, medical clinics, physicians, and clinical nurse specialists.[3]

For children between the ages of 9 months and 6 years who have not head a lead test, the primary care physician must determine whether the child is at risk of lead poisoning, which Ohio’s administrative code defines as a child who meets one or more of the following criteria:

is Medicaid eligible
lives in an area designated as a high lead risk zip code
lives in or regularly visits a residence, school, or child care facility built prior to 1950
lives in or regularly visits a residential unit built prior to 1978 that has deteriorating paint (may include a day care center or preschool)
lives in or regularly visits a residential unit built prior to 1978 with recent ongoing or planned renovation/remodeling
has a sibling or play mate with lead poisoning (past or current)
frequently comes into contact with an adult with a lead-related hobby or occupation
lives near an industry known to generate airborne lead dust (e.g. active lead smelter, battery recycling plant)[4]

A primary care provider must order a blood lead screening test for any child under 6 years old who is determined to be at risk of lead poisoning and who has not has a blood lead screening test or for whom the results of such a test are not available.[5]

The primary care provider of a child under age 6 must make a good faith effort to obtain the results of all blood lead screening tests performed on children at risk of lead poisoning.[6]

Responsibilities of your Landlord

Federal law requires that a landlord must disclose any known lead-based paint hazards on the premises. If a rental property was built prior to 1978, a landlord must supply tenants with a lead-based paints disclosure form and a copy of the US EPA’s “Protect Your Family from Lead in the Home” educational pamphlet. The lease must also include a lead warning statement confirming that the landlord complied with lead disclosure laws.

Under the Fair Housing Act, a landlord cannot refuse to rent to or evict a tenant with young children in order to avoid liability for lead poisoning. A landlord also cannot evict a tenant because he or she receives notification of a lead hazard on the property or that a resident child has lead poisoning.

A landlord has a duty to keep her properties safe and habitable, and a violation of this duty can result in the landlord being liable for damages to the tenant.[7] This duty applies to keeping a property safe and habitable when it comes to lead hazards, as well.

Responsibilities of the State

Majority of Ohio’s lead laws are reactive as opposed to preventative in that the State is under few obligations to act to address lead hazards until after a child has suffered lead poisoning and that lead poisoning has been confirmed by a blood test.

Investigation

When a child under 6 years old has lead poisoning, the state must conduct an investigation to determine the source of the lead poisoning.[8] If the child is between the ages of 6 and 16, the state has the authority to conduct an investigation into the source of the lead poisoning, but is no longer statutorily required to do so.[9]

The nature of these investigations depends on the level of lead in the child’s blood:

For children with a blood lead level between 5 and 10 micrograms per deciliter, a -public health lead investigator must complete a “comprehensive questionnaire form” and provide the child’s parent or guardian with an investigation report and educational materials.[10]
On-site investigations of a child’s residence, child care facility, or school are required for children with blood lead levels greater than 10 micrograms per deciliter.[11]

On-site investigations must be completed by a public health lead investigator, and before or during an on-site investigation, the investigator must review known records and reports related to past lead investigations and assessments and complete a comprehensive questionnaire. The outcome of this review determines what further actions the director must take and what methodology he or she must use, this may include a visual inspection, X-ray fluorescence analysis of deteriorating paint, or non-property samples (e.g. cookware, toys, glazed dinnerware).[12]

If during the investigation, the investigator determines the site is a possible source of lead poisoning, he or she must conduct a public health lead risk assessment.

If the investigator cannot determine whether the site is a possible source of lead poisoning, the investigator must take targeted environmental samples (e.g. dust, soil, and water samples) in order to make such a determination. If analysis of these samples demonstrates a level of lead that exceeds the lead hazard level, the investigator may, but is not required to, assume the site is a possible source of lead poisoning and conduct a public health risk assessment. If the analysis demonstrates a level below the lead hazard level, the investigator may, but is not required to, conclude that the site is not a possible source of lead poisoning, and must then investigate any other residential unit, child care facility, or school he or she reasonably suspects to be a possible source of lead poisoning.

If an owner or manager of the investigated site has been following certain maintenance procedures, the investigator must presume the site to not be a possible source of lead poisoning (see Presumptions below) and must investigate other residential units, child care facilities, or schools that the investigator reasonably suspects are possible sources of the lead poisoning.

Following the completion of the public health lead investigation, which may contain public health lead risk assessments, the investigator must prepare a report containing at least: the dates of the investigation; the address and date of construction of each site investigated; the name, address, telephone number, and signature of the manager of the site investigated; the name, license number, and agency of the investigator; the name, address, and telephone number of each environmental laboratory analyzing samples; the visual assessment of each site; the testing method, sampling procedure, and location of component sampled; all data collected the serial number of the XRF used; results of lead dust, soil, and water sampling; behavior data regarding occupant use patterns that could lead to the exposure of a child to lead; and for residential units, a statement regarding lead disclosure.

Lead Hazard Control Order

If the results of the risk assessment demonstrate a lead hazard in the residential unit, child care facility, or school is contributing to a child’s lead poisoning, the responsible agency must issue a Lead Hazard Control Order.[13] The Control Order must be in writing, and must specify each hazard to be addressed, and the date by which the site must pass a clearance examination demonstrating the hazard has been controlled.[14] The Control Order may include a requirement that the site may not be occupied until the hazard is abated.[15] The order must be delivered to the owner and manager of the site. If the site is a building with multiple residential units, either the responsible agency or the building’s owner or manager must deliver a copy of the order to the occupants of each unit.[16] If the site is a school or child care facility, the Department or the owner or manager of the facility must give the parent or guardian of each child under age 6 who attends the school of child care facility.[17]

The owner or manager of the site under a Control Order must cooperate with the agency issuing the order and choose a method of lead abatement that will allow them to pass a clearance test.[18] If an owner complies with the required work and passes the clearance test, the Lead Hazard Control Order will be lifted.[19]

If the owner/manager fails to comply with the Control Order, the responsible agency must issue an order prohibiting the owner/manager from using the site as a residential unit, childcare facility, or school until the site passes a clearance test.[20] When the owner/manager receives this order he or she must notify each occupant (in the case of residential units) or parent/guardian of a child attending the school or childcare facility to vacate the site until it has passed a clearance examination.[21] The agency issuing the order must post a sign on the site warning the public that the site contains a lead hazard and is unsafe for human occupation, especially by children under age 6 and pregnant women. The agency must ensure the sign remains posted and the building unoccupied until it passes a clearance examination.[22]

A Lead Hazard Control Order remains with a property even if it is sold to a new owner.[23] You can determine if your property is subject to a Control Order by inquiry with the agency responsible for writing orders in the given geographic area. The Ohio Department of Health issues orders in 83 of Ohio’s 88 counties. Delegated health departments are responsible for issuing orders in the remaining five counties and all major metropolitan areas of the state.

Lead Hazard Levels

Ohio has established lead hazard levels as follows:

Lead paint

Lead-based paint is considered present when a paint (or other surface coating) has a lead concentration equal to or greater than 1.0 mg/cm2 , 0.5% by weight, or 5,000 ppm by weight. And lead-based paint is considered hazardous to human health when it is present in the following places and at the following levels:

on any friction surface where dust levels on the nearest horizontal surface (e.g. window sills, floors, countertops) beneath the area of friction have lead levels equal to or greater than:
- 40 micrograms per square foot for interior or exterior living area floors,
- 250 micrograms per square foot of interior or exterior living area window sills,
- 40 micrograms per square foot for surfaces other than window troughs or interior window sills.
on any chewable lead based surface that has evidence of teeth marks
on an impact surface and the paint is damaged/deteriorated
in a deteriorated/damaged condition inside or on the exterior of a residential unit, child care facility, or school[24]

Lead-contaminated dust

Lead-contaminated dust is considered hazardous to human health when present in the following places and at levels at or exceeding:

40 micrograms per square foot for interior or exterior living area floors,
250 micrograms per square foot of interior or exterior living area window sills,
400 micrograms per square foot for window troughs.
40 micrograms per square foot for surfaces other than window troughs or interior windowsills.
on the floors or interior windowsills of an untested residential unit or common area of a multi-family dwelling that meets certain standards of random sampling criteria[25]

Lead contaminated soil

Lead-contaminated soil is considered hazardous to human health when present in the following places and at levels at or exceeding:

1,200 micrograms per gram in non-play areas
400 micrograms per gram in play areas[26]

Lead-contaminated water pipes

Water pipes that leach a lead concentration equal to or exceeding 15 micrograms per liter are considered hazardous to human health.[27]

Presumptions

If certain maintenance procedures have been performed, then an investigator must presume the site is not the source of the lead poisoning and must investigate other residential units, child care facilities, or schools that the investigator reasonably suspects are possible sources of lead poisoning.[28]

Ohio Revised Code sections 3742.41 through 3742.46 sets forth these maintenance requirements, which include but are not limited to: covering porous surfaces with smooth, cleanable covering or coating; prompt and safe repair of deteriorating lead paint; providing written notice about potential lead hazards in order to encourage those exposed to report concerns; maintain at least a 3-year record of such practices; complete a training program in essential practices; and using specialized cleaning practices. An owner or manager of the residential unit, child care facility, or school must do all of the essential practices to get presumption.

If a residential unit, child care facility, or school passes a clearance examination under ORC 3742.49 it is presumed to have successfully completed the preventative measures necessary to trigger the presumption that the site is not the source of the lead poisoning.[29]

The presumption established by these preventative maintenance measures may, however, be overcome in a court of law by clear and convincing evidence.[30]

Resources for Financial Assistance to Address Lead Risk

Cleveland, Summit and Cuyahoga Counties, and the state of Ohio each operate programs that offer grants to remedy lead-based paint hazards. Grants are awarded based on multiple factors including: tenants or property owners’ incomes and whether there are children under the age of 6 residing in or frequently visiting the home. Additional information for each program can be found at the following links:

Cleveland’s lead grant program

Summit County lead grant program

Cuyahoga lead grant program

Ohio lead grant program