According to recent EPA statistics, nationally there are approximately 64 million houses that are suspected of containing lead paint. This should not be surprising news, since paints contained lead as far back as the 1990s. In fact, lead use in paints was only recently prohibited.

The Allegheny County Health Department in Pennsylvania has launched a campaign to warn do-it-yourself remodelers about the dangers of lead poisoning to young children. According to the Allegheny County Health Director, while lead poisoning still occurs most frequently in lower-income families living in poorly maintained housing, there is an increase in reported poisonings in middle-class families that are buying and renovating older homes in the cities and suburbs.

This past July, the EPA published a final rule, 40 CFR 745.81, which requires tenants to be informed of lead paint dangers. The rule requires those individuals who perform renovations to pre-1978 housing to provide a lead hazard information pamphlet to the owners and tenants of such housing before proceeding with the renovations. The final regulations will go into effect on June 1, 1999.

This pamphlet will offer the following warning: "Lead poisoning in young children may produce permanent neurological damage, including learning disabilities, reduced intelligence quotient, behavior problems, and impaired memory."

As lead related problems are gaining increased notoriety, litigation and enforcement efforts are on the rise. A ruling in Allegheny County, Pennsylvania recently opened the door for plaintiffs to sue a housing authority for money damages for failing to conduct adequate lead paint inspections in federally subsidized housing. In the 1998 case of Wilson v. Bucci, a plaintiff brought suit to recover damages resulting from alleged exposure to hazardous levels of lead based paint contained in a public housing apartment.

Plaintiff brought her claim under the federal Civil Rights Act based on the Housing Authority's alleged failure to comply with the Federal Lead-Based Paint Poisoning Prevention Act ("LBPPPA"), 42 U.S.C. .4801 et seq. (1995), the housing inspection provisions of Section 8 of the United States Housing Act of 1937, 42 U.S.C. . 1437 (Supp. 1998), and regulations promulgated under the authority of these two laws.

That law required a housing authority to conduct a preoccupancy inspection for paint and provide at least annual inspections thereafter for units built before 1978 that are occupied by any family with young children. Plaintiffs alleged that for two years the Housing Authority failed to properly conduct the required inspections.

The Housing Authority sought to dismiss the suit on the ground that violations of the LBBBPA could not be enforced through a private action for money damages, but the motion was not successful and the case has been allowed to proceed.

An EPA Enforcement Coordinator has reported that his office recently conducted a round of inspections and is in the process of issuing complaints and subpoenas in various cities. He stated that this activity is ongoing nationwide and EPA's efforts to enforce the lead law will lead to increased levels of enforcement activities in upcoming years.

The EPA may assess a civil penalty of $11,000 per lead related violation. However, the EPA must take in account the nature, circumstances, extent and gravity of the violations alleged, the violators ability to pay, effect on ability to continue to do business, history of prior violations, degree of culpability and other matters as justice require.

On September 9, 1998, the US EPA filed a civil complaint against Grady Management, Inc., a property management company based in Maryland. The complaint alleged in four counts that the company violated Section 409 of the Toxic Substances Control Act, 15 U.S.C. . 2615 ("TSCA"), by failing to comply with the regulatory requirements enacted under the Residential Lead-Based Paint Hazard Reduction Act of 1992.

An attorney for the company disclosed to the EPA that lead disclosure forms were properly distributed to tenants. However, the disclosure forms contained material errors regarding the presence of lead. The management company's failure to disclose the presence of known lead-based paint and its hazards was a violation of federal law.

On September 9th and 10th, the EPA entered into a consent agreement with the property management company. Since the property management self disclosed their violations, cooperated with the EPA as requested and the violations did not result in serious harm or present an imminent and substantial endangerment to human health and the environment, the EPA substantially mitigated its penalty.

In the last ten years, there has been a tremendous amount of litigation nationwide over injuries allegedly attributed to lead contamination. Litigation and enforcement activity is now on the rise.

Older paint manufacturers, distributors, retailers and housing authorities have been included in large, multi-party cases, and plaintiffs' attorneys have collected a sizable wealth of shared information. Their clients, often people who experienced prolonged contact with lead as children, are alleged to now be suffering from irreversible brain damage.

Home purchasers and renters can avoid these horrifying scenarios by investigating before purchasing or leasing. If lead is detected, suitable measures are in order. Landlords and sellers must ensure that their practices conform with federal and state laws.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.