Abatement by Any Other Name...
For a few days, Belinda Crimmins figured she and her three-year-old son, Patrick, might be coming down with matching colds. First stuffy heads, then runny noses, then coughing, and finally a pair of uncharacteristic migraines. She took their temperatures to check for fever, but their temperatures were normal.
"And then I realized: They're sanding next door. That's probably lead paint."
It's the sort of mental leap only a mother would make, but it turned out to be true.
Contractors were in fact sanding the house next door, and had been, and subsequently would continue, all day, six days a week, for nearly six weeks. Workers with paper face masks and electric grinders attacked the single-story home on Harvard Street in the Heights and the garage apartment in back from beam to eave, wearing away old coats of armor-like paint (later tested and found to have a lead content of 8.9 percent by weight -- well over the .5 percent identified as dangerous by federal regulations) down to bare wood.
Belinda's husband, Ken Crimmins, shot video footage of clouds of paint dust wafting across the fence line that separates his neighbor's lot from his own. A grayish snowfall of paint chips and dust still rings the now freshly painted home's perimeter, piled up on bare earth, where there's nothing to stop it from seeping irretrievably into the soil, or across the property line, or into the street, at the next hard rain. And where there's also nothing to stop Patrick -- or the two young neighbor kids who live in the house bordering it on the other side, or any of the five other children on the block, or the three grandchildren who regularly visit relatives there -- from rooting around in the dirt and chewing on the reputedly sweet-tasting chips.
Nothing to stop them aside from the fact that Belinda and Ken Crimmins now choose to keep Patrick indoors, because they say the owner of the house refused to admit that the paint was lead-based, refused to acknowledge any liability even if it was, refused to recognize any wrongdoing on his part, and most importantly, refused to stop the grinding until all of the paint was off the house -- where it had been stable and relatively benign -- and on the ground, where it remains.
The bothersome thing is that according to current local, state and federal regulations, the homeowner who turned the paint into dust seems to be legally correct on every count but one: There's plenty of lead in the paint.
It's been 22 years since the federal Environmental Protection Agency banned the use of lead-based paints in the United States, and most people are by this late date aware that lead, even in modest doses, can contribute to profound developmental illnesses, including brain damage and death, when ingested by children under age six.
Many people also think that lead exposure is a problem that has been largely solved, with educational campaigns, free lead-reduction and lead-abatement programs, and strict lead disclosure policies targeted at homebuyers, low-income families and renters who might otherwise have limited access to means of preventing exposure.
Lead exposure is also an easily overlooked problem in Houston, where factors including boom-time construction and a general lack of interest in historic preservation add up to a relatively youthful housing stock.
But in neighborhoods such as the Heights, where the Crimmins family lives, many of the homes are bungalows and Victorian cottages originally built in the 1920s and '30s, and many of those are still sheathed in one or several layers of lead-based paint applied before the 1976 ban.
Now, as proximity to a newly bustling downtown drives up property values, more and more of these old Heights homes are being bought up by developers. Some tear down the old buildings and erect new structures. Others simply remodel or spruce up the existing home for rental or resale.
Many of the latter either partially or completely remove layers of old paint to make way for a fresh coat. That's what's happening at the house next door to the Crimminses. And what the Crimminses have found is that there is no agency -- neither federal, state, county nor city -- with direct oversight of problems such as theirs; that because of a loophole in state and federal regulations, there is in fact nothing illegal about the weeks of grinding toxic lead into airborne dust, and nothing illegal about leaving it on the ground. And that shy of filing a private civil suit against the homeowner and proving that the activity contaminated their property, they have little recourse aside from a bureaucratically oft-repeated mantra of "education."
When Belinda Crimmins realized what was in her air, she called every agency she could think of. She called the local air-quality control board and says she was told that if no one there actually saw the dust landing on the Crimminses' property, there was nothing they could do.
She called the city's HUD-funded Lead-Based Paint Hazard Control Program, and says she was told that if there were a child with a documentably dangerous level of lead in his blood, the Crimminses might qualify to have lead abatement done free, but if there were no such already-poisoned child, the program could do nothing. Belinda had Patrick's blood tested, but the test didn't reveal a dangerous level of lead.
She called the EPA and was put in touch with the Texas Department of Health's Region 6 Toxic Substances Control desk, where Lance Sindo offered a "community outreach" of education and more phone numbers to call. Sindo also agreed to speak with neighbors at the Crimminses' home about lead-paint issues, but he has no enforcement oversight.
She called people at the Texas Natural Resources Conservation Commission, who, she says, told her they deal only with industrial quantities of waste material.
Finally, after chasing one contracted worker off the site, when she says she was afraid she "was going to do something rash," she called the police, who told her they weren't aware of any law being broken.
And through it all, she tried to "educate" the owner of the home, Dale Johnson, who lives a few blocks south, and who had recently purchased the property.
Crimmins says Johnson first told her that the house had been sanded before, and so there was no lead paint on the house. She says Johnson later, under increasing pressure from the Crimminses, told Lance Sindo that he would abide by the abatement regulations, but after four days of attempting to take off the paint with a painstaking solvent process, reverted to dry grinding. She says that in her presence, Johnson told the contractor, Antonio Hernandez, that the paint contained no lead. And she says Johnson accosted her husband and "got in his face" over the number of agencies that were suddenly asking him questions. Crimmins invited Johnson to attend the educational meeting with Sindo at her home, but Johnson didn't show. The Crimminses' most recent communication with Johnson, who did not return phone calls from the Press, is a letter he sent them in which he reiterates that his actions violate no law.
He's right. The Texas Department of Health's own Environmental Lead Reduction Rules, codified by the Texas Legislature in 1996 and amended in 1998, follow the lead of the federal Environmental Protection Agency standards in calling for strict certification standards for lead inspectors, risk assessors and the people who perform abatement. Abatement is defined in the rules as "any measure or set of measures designed to permanently eliminate lead-based paint hazards."
The same rules explicitly exclude "renovation, remodeling or landscaping activities, which are not designed to permanently eliminate lead-based paint hazards, but, instead, are designed to repair, restore or remodel a given structure or dwelling, even though these activities may incidentally result in a reduction or elimination of lead-based paint hazards."
The key word is "designed." The key question is intent. And the short answer is that if you intend to abate, or remove the lead hazard, you're bound by stringent guidelines as to your methods of removal, but if you intend only to remodel, you may freely engage in precisely the same dangerous activities explicitly prohibited for abatement. And since the rules don't bother to define remodeling, private homeowners and contractors are free to make the call themselves. Either write "abatement" on the work contract and pay extra in time, labor and licensing fees, or write "remodel" on the contract and grind away.
"I hate to go on the record and say it's a problem," says Keith Alexander, chief of the Environmental Lead Branch at the Texas Department of Health, "because I'd have every remodeler call me. I can't say that it's been a problem, because it's not part of the rules. They're not doing anything legally wrong. That doesn't make it right as far as from the health standpoint. [But] there's no rule that says they can't sand, if they call it a remodel or a renovation."
It's a whopper of a loophole, and once you ask Alexander why it's there, you've embarked on a journey in bureaucratic four-square. According to Alexander, the Texas law is the way that it is because it's "patterned after EPA rules and law, and our law that established those rules directed the state. It says that we can't be more restrictive than EPA rules." Audibly frustrated, Alexander says that he's directed some complaints to the TNRCC, that they might be able to do something about hazardous materials moving from one property to another, but "I haven't heard that they do."
What to do. Calls to HUD and the EPA yield informative web-site addresses and message relays to press officers, but no authority to regulate inside the loophole. Calls to both Dennis Hines at the city's Bureau of Air Quality Control and Mike McDaniels at the lead paint hazard program are referred to Health Department Chief of Public Affairs Cathy Barton, who can identify no presiding authority in the Crimminses' scenario before suggesting a call back to Keith Alexander at the Texas Department of Health, who seems to be the final referral point for most anyone who has anything to do with lead abatement, which fact must account for at least some portion of his audible frustration.
Even Lance Sindo, who has offered so much educational support to the Crimminses, can do little more than check with his supervisor before calling back to say that he's not allowed to speak to the issue on the record.
Dr. Pamela Berger, director of environmental policy in the mayor's office, did speak.
"To my knowledge, there is not [a local ordinance to close the loophole], and I did look. I wish I could tell you that there is, because this is not a very acceptable situation. The policy is flawed, clearly, when this kind of thing can happen. I don't want to suggest that we have anything formal as yet, because we don't, but I think it's an area we need to really think about addressing in the next legislative session."
It's an area that's been addressed in legislative session at least once already, in 1995, when the current Texas law was enacted. Houstonian Rebecca Rex, whose son Justin was poisoned with lead prenatally while Rex and her husband remodeled a Heights-area home, gave pro-legislation testimony before that session and founded United Parents Against Lead in Houston as a clearinghouse for information. Rex's recollection is that the law was hurried through because its key measure, requiring that lead-abatement contractors be certified by the Texas Department of Health, was a prerequisite for the receipt of HUD funds for local lead-abatement projects. The law, with loophole, was enacted, and the HUD money went to Houston's abatement program, now headed by Mike McDaniels.
Rex also remembers speaking with a city attorney who was, at the time, busy drafting a local ordinance that would have closed the loophole and regulated remodeling hazards. The ordinance was to have been part of Councilwoman Helen Huey's Curb Ordinance, but was finally never included, and the attorney, says Rex, no longer works for the city.
So it stands. And in the meantime, at least some contractors seem to be playing fast and loose with the spirit, if not the letter, of the regulations. When contacted by the Press, a representative of Antonio Hernandez Painting -- the contractor who ground the paint off the house next door to the Crimminses -- claimed that Hernandez was indeed certified by the state to do abatement work, but that he had lost the paperwork proof in a recent burglary. The Texas Department of Health, the certifying agency, has no record of any individual or firm including the name Antonio Hernandez on its rolls of certified abatement technicians. Asked if the project of Harvard Street was an abatement, the company's answer was a simple, if damning, "yes."
It's an abatement to the Crimminses' way of thinking as well. Never mind that the legal definitions of abatement turn out to have nothing to do with what's done, and everything to do with what's conveniently said. If the hazard is present, they think, then the law, some law, should be applicable.
Thwarted by the regulatory agencies, stalled by the homeowner and stumped for an avenue of immediate recourse, the Crimminses are filing a formal complaint with the EPA, which will at least serve the purpose of drawing some attention to their particular plight.
"They're the ones who wrote the law," says Ken Crimmins. "Nobody wants to enforce locally. We don't want to really sue the guy, because I know about civil suits and lawyers trying to enrich themselves prolonging the dispute. I want the EPA to make him remove the lead dust from the soil on the property, and then all the contamination is gone and I can rest easy."
But the Crimminses' situation isn't an isolated incident. Just down the street in Sunset Heights, at the corner of Aurora and North Main, an old wood-frame structure with a sign in the window indicating that it was once Morgan's Furniture Shop sits half-stripped in a circle of fresh paint dust and chips, just across the street from Immanuel Temple. The dust, tested by the Press at an EPA-accredited laboratory, came back with a lead content of just over 1 percent -- twice the acceptable level. No sign indicates the name of the contractor doing the work. The firm listed on county tax rolls as owner of the building has no listed phone number.
E-mail Brad Tyer at firstname.lastname@example.org.
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