City Voices

Richard Miniter
Lead Astray
Autumn 1993

Concerned about his children’s health, Tony Benjamin asked the city for help. It turned out to be a big mistake. In September 1992, in the midst of a lead-poisoning scare at city schools, he and his wife had five of their eight children tested by a private lab. Their youngest son, Elisha, now two years old, had a lead level of 25 micrograms per deciliter of blood—right at the threshold of what is considered dangerous. (The other children’s lead counts were high, but not dangerously so.)

The family doctor recommended that Elisha be retested; he thought the boy’s chicken pox might have temporarily boosted his lead count. With the illness in retreat, Elisha’s lead level had fallen to 20 micrograms per deciliter—high, but not considered dangerous. The Benjamins were still concerned. They sent a copy of the two tests to the city Department of Health and asked for help. The lab also filed a copy of the first blood test with the department, under a state regulation that required any blood test showing a lead level of 25 micrograms or above to be reported to the city. (That requirement has since been modified. Now all test results must be filed with the city, which will act on any that shows a level of 20 micrograms or more.)

Mr. Benjamin got a lead detection kit and began testing his home. He was thorough, even testing beneath the top layer of paint on his walls and woodwork. Below the surface of most of the woodwork, Benjamin found high concentrations of lead. He called the New York State Lead Abatement Program in Albany, and an official said there was no cause for concern since the woodwork had been painted within the previous year, sealing in the old lead paint.

But one November morning, two city Health Department inspectors arrived unannounced at Benjamin’s three-story home in Flatbush, Brooklyn. Wherever the inspectors saw a nick in the paint, they marked it with a large red rubber stamp reading VIOLATION. With 17 such marks placed throughout the Benjamin home, the inspectors pronounced it a health hazard. Benjamin and his wife were told to move the family out, strip all the woodwork, and renovate the basement. Later he was notified by certified mail that if he did not immediately repair the 17 violations, he would face fines of up to $8,500.

The inspection seemed random, Benjamin says: “They just wandered about.” The inspectors did not examine the children’s bedrooms. Nor did they look at the windows, where friction tends to strip away paint, or the baseboards, closer to the level of young children than the doorway moldings on which the inspectors concentrated.

Benjamin did renovate the basement, where Elisha often plays, at a cost of about $7,000. He says complying with the rest of the city’s orders would cost between $10,000 and $15,000. A small businessman, he cannot afford the repairs, and he is certain that they would have no noticeable effect on his child’s health. He decided to appeal.

City inspectors showed up three more times and grew more impatient with Benjamin each time. Two subsequent blood tests showed that Elisha’s lead level continued to drop—eventually to ten micrograms per deciliter—though Benjamin failed to take the steps the city ordered. Although the Health Department’s official notice said the violations “present a danger to the life or health of the child/children of the above-referenced premises,” city officials repeatedly told Benjamin that Elisha’s lead levels were “irrelevant” and they just wanted him to comply with the rules.

Benjamin’s case was eventually heard by an administrative judge, who refused even to look at Elisha’s blood tests. Benjamin’s only defense, the judge said, would be that the paint did not contain lead. Benjamin wanted to argue that the lead paint is not a health hazard because it is not peeling or cracked, and that what the city describes as “peeling paint” violations are, in fact, merely nicks in the paint. The judge decided not to fine Benjamin, “since he has acted diligently thus far.” But Benjamin must still comply with the city’s order to remove the offending paint.

Benjamin’s story is more than a case of bureaucratic overzealousness—it is a parable of government failure. The city chose the wrong target in its war on lead-lead paint, rather than lead in a child’s blood. In fact, if Benjamin complies with the city’s orders it could actually harm his children’s health, since stripping away old paint can increase the amount of exposed lead.

Moreover, the city’s heavyhanded bureaucratic tactics all but ensure that parents will resist, rather than cooperate with, its lead-abatement efforts. The Benjamins’ neighbors, having heard about the family’s plight, are having their children tested out of state so the city will not learn of the results—or are risking their children’s health by not having them tested at all.

The city would be far more successful in its efforts if it took a less coercive approach. It should offer to inspect homes for lead with the understanding that rather than citing “violations,” it will offer prudent advice on how to minimize risk. Poor parents should be given vouchers to cover the cost of lead abatement. The Health Department’s expertise could be of great value to parents. In Benjamin’s case, the inspectors did determine that the basement play area was a large source of lead for his children; his own detection kit had registered negative. But when Elisha’s lead levels came down, the city should have backed off.

Lead is a serious problem in New York City. Forty percent of the city’s houses and apartments were built before 1940, when lead paint was common. There may be as many as 240,000 apartments that have both lead paint and small children. Toxicologists agree that high levels of lead can impair a child’s ability to learn.

But the issue is larger than lead. Thanks in part to a growing number of state and federal mandates, the city must increasingly regulate complex matters of environmental risk. In the case of lead, as with asbestos several years ago, the city is doing a poor job of identifying and remedying the most serious risks. With the federal Environmental Protection Agency expected to issue new regulations on radon and water quality soon, it is urgent that the city reassess the way it deals with environmental risks.

The city’s bureaucratic overkill means that New Yorkers will be less willing to dig into their wallets to satisfy regulations that have no significant health benefits. Benjamin, who was hit with a bill for thousands of dollars to remove asbestos from his home and is now being hounded about lead paint, wonders where it will all end. Like most citizens, he is willing to make a good-faith effort to reduce environmental risks. The city should reciprocate by carefully balancing costs and benefits, requiring citizens only to do what is necessary to avert real risks. If the remaining risk is small, the city should know when to stop. New York must never allow a call for help to become a costly mistake.

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