Crucial – but unfulfilled – role local code officials have in protecting children from lead

Tom Neltner, J.D., is Chemicals Policy Director

The tragedy in Flint, Michigan has reminded us once again how dependent we are on state and local officials to protect us from hidden threats like lead. In hindsight, anyone with a basic understanding of the role of corrosion control in keeping lead out of the water we drink knows that changing the source of that water, especially to one as corrosive as the Flint River, must be done with extreme care. Based on criminal indictments that have been handed down, the officials ignored the federal regulations designed to prevent such a tragedy.

State and local building code officials will have a chance this October to show whether they have learned from Flint. As voting members of the International Code Council (ICC), code officials will cast their ballot on a simple proposal that can significantly improve the protections for children from lead hazards. The proposal by the National Center for Healthy Housing (NCHH) would require that any contractor seeking a building permit to conduct renovations in homes built before 1978 be properly certified to ensure that their work leaves behind no dangerous levels of lead contaminated dust.

For a decade, NCHH has been submitting proposals to ICC seeking revisions to the organization’s model codes. These proposals were designed to protect residents from the hazards created when lead-based paint is disturbed or allowed to deteriorate. Each time ICC has rejected the proposal, NCHH has refined, strengthened, and narrowed them in response to feedback.

NCHH persisted in submitting these proposals because the ICC model codes largely define what state local officials consider as safe. Most states, cities, and counties in the United States use these model codes as the starting point to ensure homes are built, repaired, and renovated in a manner that protects the health, safety, and welfare of residents. They adopt the ICC model codes adding or removing provisions to fit local needs and conditions. In almost every community in our country, when a contractor applies for a building permit to renovate a home, the code official responsible for reviewing the construction documents relies on ICC model codes to guide that work. Therefore, it is critical to get the model codes right.

The current proposal before the code officials in October is the most narrow possible. It ONLY asks code officials to require that contractors include the lead-safe renovation firm certificate, required by federal rule for contractors working in pre-1978 housing, as part of the permit application process. Demonstrating that firms actually possess the mandatory certificate levels the playing field so that contractors who skirt the law will not have a competitive advantage over those in compliance. A certified contractor is also more likely to do the work safely than one who has ignored the law.

The certificate has been mandatory since 2010 under EPA’s Lead-Safe Renovation, Repair and Painting Rule, which required that all contractors obtain training in lead-safe work practices. Unfortunately, many contractors are still unaware of the regulation or unwilling to take the proper training. When the Minnesota legislature adopted this requirement to be certified in order to pull permits, EPA saw a 30% jump in contractors getting certified. Cities like Rochester, New York have had similar success.

In preliminary reviews of the October proposal, an ICC committee rejected NCHH’s proposal because they saw it as making code officials responsible for enforcing federal rules. At the hearing, EPA officials made it clear that it was the Agency’s responsibility, and not code officials, to enforce the rule. Rather, the proposal is simply asking code officials to verify that contractors are properly credentialed for the work they are proposing to complete, much the way they verify plumbing and electrical licenses of contractors working in those fields.

We depend on building code officials to ensure that renovations done on our homes are performed safely. That is their mission. When the voting on NCHH’s simple proposal closes in November, we will learn whether these officials choose to step up to their role in ensuring that the lessons from Flint have in fact made a difference.