Renovation Firms Sued Over Lead Paint Violations
Last Thursday (Jan. 13), the United States Attorney’s Office for the Southern District of New York announced that a civil lawsuit had been filed against CISNE NY Construction, Inc., CISNE JE Construction, Inc., CISNE Contracting, Inc. and their principals Jose Pancha and Edison Ruilova (together, the “CISNE Defendants”) for violating lead-based paint safety regulations.
The suit was filed by U.S. Attorney Damian Williams and the U.S. Environmental Protection Agency’s Regional Administrator Lisa Garcia.
According to the Department of Justice, the CISNE Defendants repeatedly violated the federal Toxic Substances Control Act (TSCA) and the EPA’s Renovation, Repair, and Painting Rule (RRP Rule).
Both the TSCA and RRP Rule outline safety requirements designed to minimize young children, tenants and renovation workers being exposed to toxic lead paint dust created during residential building renovations.
“EPA recognizes that all people deserve protection from the hazards of lead-based paint, especially our most vulnerable communities,” said Garcia. “Reducing childhood lead exposure and addressing associated health impacts are one of EPA’s top priorities and we are committed to the robust enforcement of standards that are intended to protect individuals and families.”
Filed in Manhattan federal court, the complaint alleges that the CISNE Defendants repeatedly failed to use legally required safety precautions when renovating apartments that had been presumed by law to contain lead paint, having been built prior to 1978.
According to inspectors from the EPA and the New York City Department of Health and Mental Hygiene, during a jobsite visit officials found that the CISNE Defendants failed to contain debris and dust during their work. A known exposure hazard, the inspectors reported that construction dust was found not just in the units being worked on, but also in the public hallways accessible to other building residents.
After sampling the hazardous material, officials reported that lead contents found in the dust exceeded both local and federal safety standards.
In addition to failing to contain dust and debris during renovations, the CISNE Defendants have also been alleged of failing to post warning signs at the residential jobsites receiving renovations or taking other steps required by law to protect tenants and workers. As a result of the discovered negligence, the EPA and New York officials report the CISNE Defendants ultimately risked exposing tenants and workers to lead paint dust and had violated TSCA and the RRP Rule.
Upon conducting further investigations, the complaint also includes an additional allegation against the CISNE Defendants, claiming that for years the defendants performed renovations in New York City apartment buildings without the required training or certifications.
This was included in the suit after CISNE Defendants failed to provide EPA with legally mandated records that would allow EPA to audit their work.
“As alleged, the CISNE Defendants repeatedly violated rules designed to protect children and others from lead poisoning during renovations of residential buildings,” said Williams. “Their actions threatened the most vulnerable with severe lifelong injury. This Office will vigorously enforce the laws designed to protect the health of children against violators who disregard the public health and put children at risk.”
In the suit, officials are seeking an injunction barring the CISNE Defendants from performing further work governed by the TSCA and the RRP Rule without complying with mandated safety requirements. The suit also seeks an order requiring the CISNE Defendants to mitigate the harms caused by their prior illegal renovation work.
The case is being handled by the Environmental Protection Unit of the Office’s Civil Division. Assistant United States Attorney Zack Bannon is in charge of the case.
Lead Paint Standards, Safety and Enforcement
Back in 2008, the EPA released the Lead-Based Paint Renovation, Repair and Painting Rule. The RRP (amended in 2010 and 2011) aimed to protect the public from any and all lead-based coating hazards associated with renovation, various repairs and activity.
The RRP rule protects residents of pre-1978 homes from lead-based paint disturbed during renovation, repair or painting activities. The rule requires that firms that perform or offer to perform renovations in pre-1978 houses need to be certified by the EPA and assign individuals who have been trained to use lead-safe work practices; disclose important safety information to residents prior to the work; and document their compliance with the rule.
The rule officially went into effect on April 22, 2010.
In 2009, petitioners requested that the EPA provide more adequate protection for children by providing more stringent lead paint standards. By 2011, the EPA acknowledged this need but failed to provide a timetable or made any moves to propose a new rule.
By June 2018, the EPA released another proposal to the dust-lead hazard standards; the action was stemmed from a December 2017 ruling by the U.S. Court of Appeals for the Ninth Circuit, which ruled that the agency must reevaluate the risks from lead paint.
According to the EPA, lead-contaminated dust from chipped or peeling lead-based paint in homes built prior to 1978 presents one of the most common causes of elevated blood lead levels in children. Infants and children are especially vulnerable to lead paint exposure because their growing bodies absorb more lead than adults do, and their brains and nervous systems are more sensitive to the damaging effects of lead.
The June proposal was reportedly in response to a lawsuit filed in August 2016 against the EPA by a coalition of environmental and community-led organizations, who charged that the EPA had duties to uphold regarding the TSCA and its amendments contained in the Paint Hazard Act.
In June 2019, former EPA Administrator Andrew Wheeler and U.S. Housing and Urban Development Secretary Ben Carson announced new standards for lead, specifically found in dust on floors, windowsills and miscellaneous surfaces to protect children from its harmful effects.
To continue to protect children’s health and make progress on the dust-lead issue, the EPA lowered the dust-lead hazard standards from 40 micrograms of lead per square foot to 10 micrograms per square foot on floors and from 250 micrograms to 100 micrograms on windowsills.
The new standard applies to all inspections, risk assessments and abatement activities in various hospitals, childcare facilities, certain schools and housing built before 1978.
In January 2021, the final rule to lower the clearance levels for lead that can remain in dust on floors and windowsills after lead abatement was approved and the new standards were incorporated into the Section 402/404 lead-based paint activity regulations as well as the Section 1018 real estate disclosure regulations.
By October, the EPA announced that it had launched a new training initiative, Enhancing Lead-Safe Work Practices through Education and Outreach, in Southern California communities.
The new program aims to raise awareness about childhood lead exposure and protect environmentally overburdened and underserved communities across the nation from lead exposure. The initiative arrives in accordance with the Biden-Harris Administration’s commitment to advancing environmental justice.
The two-pronged approach to reducing lead exposure includes the following initiatives:
Most recently, in November, the EPA announced plans to hold property management companies (PMCs) responsible for lead-based paint safety requirements. The notice intends to improve compliance and strengthen enforcement of the lead-based paint RRP Rule and the TSCA as they apply to PMCs that perform, offer or claim to perform regulated renovations without certification from the EPA in pre-1978 housing or child-occupied facilities.
On Nov. 4, the EPA published the notice in the Federal Register. However, to hold PMCs accountable for the lead-based paint safety requirements, the EPA must first withdraw previously published answers to two Frequently Asked Questions (FAQs) concerning property management companies and their compliance responsibilities under the TSCA and RRP rule.
The intention to remove the FAQs answers was included in the Nov. 4 notice. There, the EPA explained its rationale for the withdrawal, in addition to the circumstances where PMCs are required to obtain certification from the EPA and ensure that renovations in the homes they manage are performed by certified firms and employees trained to use lead-safe work practices.
According to the EPA, this measure is especially important to underserved and overburdened communities, which often include a high proportion of rental housing managed by PMCs and the military community, where family housing is also often managed by PMCs.
Following the public’s 30-day comment period, the EPA plans to post a memorandum that states whether the withdrawal will take effect as planned, on March 19, 2022.