Lead-Based Paint Poisoning: Children in Section 8 Tenant-Based Housing
Are Not Adequately Protected (Letter Report, 05/13/94, GAO/RCED-94-137).
The lead-based paint inspections that the Department of Housing and
Urban Development (HUD) requires public housing authorities to conduct
in section 8 housing mainly involve visual searches for chipped or
peeling paint. These inspections do not test for lead unless a child
with elevated lead levels is known to live in the home. The four public
housing authorities GAO visited--Boston, Massachusetts; Minneapolis,
Minnesota; New Orleans, Louisiana; and St. Paul, Minnesota--complied
with these requirements, but their visual inspections did not alert them
to lead hazards in intact painted surfaces, such as floors, window
sashes, and window sills. HUD officials could not estimate the cost of
testing section 8 housing or whether requiring such testing would
discourage landlord participation in the program. Federal regulations
did not adequately protect children with elevated lead levels living in
the four public housing authorities GAO studied. Tests by local housing
agencies showed that seven of the 11 residences selected for GAO's study
contained lead-based paint hazards. The public housing authorities,
however, did not know whether paint testing was being done, and local
health agencies did not routinely determine whether the children they
identified with high lead levels lived in section 8 housing. Therefore,
they did not alert the public housing authority to the children's
condition. The applicability of the Lead-Based Paint Poisoning
Prevention Act to section 8 housing is unclear. Although the act
appears to cover section 8 housing, the legislative history suggests
that Congress intended to exempt such housing from the act's
requirements for lead-based paint risk assessments and other control
measures. Because these requirements could be costly, they could
discourage landlord participation in the program, thereby reducing the
stock of affordable housing. HUD, however, maintains that the act does
apply to section 8 housing and plans to draft rules imposing the act's
requirements for dwellings in the program.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: RCED-94-137
TITLE: Lead-Based Paint Poisoning: Children in Section 8
Tenant-Based Housing Are Not Adequately Protected
DATE: 05/13/94
SUBJECT: Compliance
Environmental legislation
Children
Public housing
Safety regulation
Toxic substances
Low income housing
Testing
Federal property
Health hazards
IDENTIFIER: Boston (MA)
Minneapolis (MN)
New Orleans (LA)
St. Paul (MN)
HUD Section 8 Housing Assistance Program
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Cover
================================================================ COVER
Report to Congressional Committees
May 1994
LEAD-BASED PAINT POISONING -
CHILDREN IN SECTION 8 TENANT-BASED
HOUSING ARE NOT ADEQUATELY
PROTECTED
GAO/RCED-94-137
Lead-Based Paint Poisoning
Abbreviations
=============================================================== ABBREV
EBL - elevated blood lead level
HUD - Department of Housing and Urban Development
PHA - public housing authority
Letter
=============================================================== LETTER
B-252772
May 13, 1994
The Honorable Donald W. Riegle, Jr.
Chairman
The Honorable Alfonse M. D'Amato
Ranking Minority Member
Committee on Banking, Housing
and Urban Affairs
United States Senate
The Honorable Henry B. Gonzalez
Chairman
The Honorable Jim Leach
Ranking Minority Member
Committee on Banking, Finance
and Urban Affairs
House of Representatives
The risk of poisoning from lead-based paint continues to threaten
young children living in housing constructed before 1978, when the
sale of such paint was banned. Exposure to lead, even at low levels,
may cause children--especially those under the age of 7--to develop
serious health, learning, and behavior problems. According to
officials of the Department of Housing and Urban Development (HUD),
over 300,000 families with children under the age of 7 live in
privately owned rental housing--most of which was constructed before
1978--and receive tenant-based housing assistance through HUD under
section 8 of the Housing Act of 1937, as amended.\1
Concerned about the continued threat to children's health posed by
lead-based paint in federally assisted housing, the Congress
required, in the Housing and Community Development Act of 1992, that
we review the enforcement of and compliance with federal lead safety
laws and regulations as they apply to section 8 tenant-based housing
and determine whether changes are needed to better identify lead
hazards in that housing. Specifically, this report addresses
the effectiveness of HUD's regulations for identifying lead-based
paint hazards to ensure the safety of section 8 tenant-based
housing,
the effectiveness of HUD's regulations for protecting children who
already have elevated levels of lead in their blood and live in
section 8 tenant-based housing, and
the applicability of the Lead-Based Paint Poisoning Prevention Act,
as amended in 1992, to the section 8 tenant-based program.
In four major cities--Boston, Massachusetts; Minneapolis, Minnesota;
New Orleans, Louisiana; and St. Paul, Minnesota--we assessed the
implementation of federal lead safety regulations pertaining to
section 8 tenant-based housing. We conducted our study by matching
the addresses of children with elevated lead levels (obtained from
local health agencies) with the addresses of section 8 residences
(obtained from the local public housing agencies in each city).
Through this process, we identified a limited number of complete
matches, from which we selected 11. For these 11 matches, we
determined whether the residences had been tested for lead paint and
whether the children had been protected from further poisoning. Our
findings apply only to the locations we reviewed and cannot be
generalized to other cities. (See app. I for additional information
on our study's scope and methodology.)
--------------------
\1 Section 8 tenant-based assistance is provided to the tenant rather
than to the housing project or to a public housing authority, as with
public housing. See our earlier report on lead-based paint in public
housing, Lead-Based Paint Poisoning: Children in Public Housing Are
Not Adequately Protected (GAO/RCED-93-138, Sept. 17, 1993).
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
The legislative goal of inspecting section 8 housing is to ensure
that residents have "decent, safe, and sanitary" housing, which
includes protection from exposure to lead-based paint hazards.
However, the lead-based paint inspections that HUD requires public
housing authorities to conduct consist primarily of visual searches
for defective--chipped or peeling--paint. These inspections do not
include testing for lead unless a child whose blood contains elevated
levels of lead is known to live in the residence. The four public
housing authorities we visited complied with these requirements, but
their visual inspections did not alert them to lead hazards in
certain intact painted surfaces, such as floors, window sashes, and
window sills. HUD officials could not estimate the cost of testing
the section 8 tenant-based inventory or the extent to which requiring
such testing would discourage landlords from participating in the
program. The officials stated, however, that resource constraints
have limited the ability of public housing authorities to enhance
visual inspections with more conclusive testing of the paint.
Federal regulations did not adequately protect children with elevated
lead levels who lived in section 8 tenant-based housing overseen by
the four public housing authorities included in our study. Tests by
local health agencies showed that 7 of the 11 residences selected for
our study contained lead-based paint hazards. Although regulations
require public housing authorities to have the paint tested in the
homes of children with elevated lead levels and to require corrective
actions, the public housing authorities did not know whether the
testing was being done. Local health agencies did not routinely
determine whether the children they identified with elevated lead
levels resided in section 8 housing; therefore, they did not notify
the responsible public housing authorities of the children's
condition or of the testing that was being done for lead-based paint
hazards.
The applicability of the Lead-Based Paint Poisoning Prevention Act,
as amended in 1992, (the act) to section 8 housing is uncertain.
Although the act by its terms appears to cover section 8 tenant-based
housing, the legislative history of the 1992 amendments to the act
suggests that the Congress intended to exempt such housing from the
act's requirements for lead-based paint risk assessments and other
control measures. Because these requirements could be costly, they
could discourage property owners' participation in the section 8
program and could thus reduce the nation's stock of affordable
housing. HUD officials, however, maintain that the act does apply to
section 8 tenant-based housing, and they plan to draft rules imposing
the act's requirements for dwellings in the program. They also told
us that they plan to provide ample time for congressional and public
comment on the rules and may develop other interim procedures to
better identify hazards. Until new rules have been approved, HUD
plans to continue enforcing the existing regulations, which do not
require risk assessments.
BACKGROUND
------------------------------------------------------------ Letter :2
To provide affordable housing for low-income families, the Congress
established several housing assistance programs, including the
section 8 certificate and voucher programs. HUD, which administers
these programs, contracts with public housing authorities, which in
turn certify applicants for eligibility and make rental assistance
payments to property owners on behalf of program participants.
Public housing authorities also contract with property owners to
provide rental housing to eligible applicants. As part of this
housing contract, property owners agree to have their dwellings
inspected by the public housing authorities and to comply with HUD's
housing quality standards, which include procedures for eliminating
lead-based paint hazards.
Lead-based paint is a serious problem in the United States. On the
basis of studies by HUD and the Environmental Protection Agency,
experts have estimated that one out of every six children under the
age of 7 has been poisoned by lead to some degree. Young children
are more susceptible to lead poisoning than older persons because
they retain proportionally more lead in their blood, where it can
damage their still-developing neurological systems.
To eliminate the hazards of lead-based paint, section 302 of the act
requires that certain types of federally assisted housing be
inspected for lead-based paint and that identified hazards be
eliminated as far as practicable. Lead-based paint hazards are
defined by statute as any of six conditions that can present lead
exposures sufficient to adversely affect human health: contaminated
dust; deteriorated lead-based paint; intact lead-based paint on
friction surfaces, impact surfaces, and chewable surfaces accessible
to children;\2 and contaminated bare soil.
HUD issued its current lead-based paint regulations for section 8
tenant-based housing in 1987 and changed them slightly in 1988.
These regulations require that dwellings constructed before 1978 and
inhabited by families with children under the age of 7 be visually
inspected at least once a year\3 for cracked, scaling, peeling,
chipped, and loose paint. Such defective paint represents a health
hazard and, if found, must be covered or removed. The regulations
further require that if a child with elevated lead levels is living
or will be living in the dwelling, all chewable surfaces--those
readily accessible to children under the age of 7--must be tested.
If lead-based paint is found on these surfaces, it must be covered or
removed.
--------------------
\2 Friction surfaces, such as window sashes, are likely to be rubbed;
impact surfaces, such as floors, receive weight; and chewable
surfaces, such as window sills, protrude enough to be bitten.
\3 At a minimum, inspections are to take place when tenants take
occupancy, when they vacate, and annually.
PUBLIC HOUSING AUTHORITIES'
INSPECTIONS DO NOT IDENTIFY ALL
LEAD-BASED PAINT HAZARDS
------------------------------------------------------------ Letter :3
Although public housing authorities' visual inspections comply with
HUD's regulations, in the four cities we visited these inspections
did not effectively identify lead-based paint hazards in section 8
tenant-based housing. Proper testing of the paint, followed by
abatement if necessary, would better ensure the safety of the
housing. However, the cost of such testing to landlords and the
effect of this cost on their desire to keep their properties in the
program are unknown.
The four public housing authorities in our study generally conducted
inspections in accordance with HUD's requirements, and the St. Paul
authority reported defective paint in section 8 residences. However,
these and other public housing authorities may be overlooking
significant hazards in these inspections, which require only visual
evidence and do not include testing for lead-based paint hazards.
Evidence of the limitations of these inspections is demonstrated by
the results of local health agencies' testing of dwellings.
Local health agencies test for lead after being notified that a child
with elevated lead levels has been identified through screening by a
health clinic or a private physician. For example, at the four
public housing authorities we visited, local health agencies tested
the homes of 11 children with elevated lead levels. At three public
housing authorities--in St. Paul, Minneapolis, and Boston--the local
health agencies identified lead-based paint hazards in seven
residences. The public housing authorities had recently inspected
these homes visually and had not identified any such hazards.
The Deputy Director of HUD's Office of Lead-Based Paint Abatement and
Poisoning Prevention said that HUD's section 8 tenant-based
inspection regulations should require the testing of paint in
federally assisted housing. He explained that the regulations had
not been updated to include this requirement because limited
resources were available to address the technical issues that would
arise if public housing authorities were required to test paint in
section 8 housing. He did not know and could not estimate what
resources would be needed annually for such testing. Moreover, he
had no information to support an opinion on the impact of a testing
requirement on section 8 landlords' desire to remain in the program.
The cost of such a requirement could drive landlords from the program
and thus reduce the nation's stock of low-income housing.
Although officials in HUD's Office of Lead-Based Paint currently have
no data for estimating either the cost of testing or the impact of
testing on landlords, such information could be obtained. For
example, data that could be useful in developing cost estimates as
well as in assessing factors affecting landlords' decisions to remain
in the program are being gathered by the congressionally mandated
Task Force on Lead-Based Paint Hazard Reduction and Financing. This
task force, created under section 1015 of the Residential Lead-Based
Paint Hazard Reduction Act of 1992, is trying to identify ways for
property owners to obtain financing for testing and eliminating
lead-based paint hazards. Results of the task force's work should be
available in 1995 and should be of significant value to HUD officials
as they develop guidelines for testing and eliminating lead hazards
in section 8 tenant-based residences.
According to HUD officials, data collected as part of a demonstration
program probably would be more valuable than the task force's
results. The Director of HUD's Office of Lead-Based Paint believes
that a properly designed demonstration program in a specific
geographic vicinity would provide valuable information on which to
base future regulatory decisions.
LACK OF COMMUNICATION PREVENTS
PUBLIC HOUSING AUTHORITIES FROM
IMPLEMENTING HUD'S REGULATIONS
------------------------------------------------------------ Letter :4
Children who already have elevated levels of lead in their blood and
live in section 8 housing are not protected from further exposure to
lead in accordance with HUD's regulations. Local health agencies
identified the seven children with elevated lead levels who were
living in section 8 tenant-based dwellings that contained lead-based
paint hazards; however, the public housing authorities responsible
for ensuring the testing and, if necessary, the treating of the
children's residences received no information from the health
agencies and knew of neither the children's condition nor the
continuing health hazards in their homes. Therefore, the public
housing authorities could not and did not implement HUD's regulations
requiring testing for lead-based paint and, if necessary, abating its
hazards.
Faced with similar circumstances in another segment of the low-income
housing stock--public housing--HUD has taken steps to overcome the
lack of communication. In a recent letter to the Centers for Disease
Control, HUD outlined its responsibilities, authorities, and
resources for ensuring that appropriate steps are taken to reduce
hazards for public housing residents. Furthermore, HUD encouraged
local health agencies nationwide to coordinate their efforts to
protect children from the hazards of lead-based paint with those of
local public housing agencies.
During our four-city study, we visited the local health agencies as
well as the public housing authorities. The health agencies
identified children with elevated lead levels either through their
own health screening programs or through notification by other health
care providers or physicians. The health agencies are required by
local or state laws to test a child's home for lead after being
notified that the child has elevated lead levels. Health agencies
used various techniques, including testing samples on-site and in a
laboratory, to determine the lead content of painted surfaces in
dwellings. Federal regulations require that if a section 8 family
includes a child under the age of 7 years with identified elevated
lead levels, inspections will include a test for lead-based paint on
chewable surfaces. Lead content is to be tested by using an X-ray
fluorescence analyzer or a comparable method approved by HUD.
The local health agencies identified many hazards, including
deteriorating (chipped and peeling) paint surfaces and dust
containing unacceptable levels of lead-based paint.\4 They found
hazards both inside and outside dwellings in places such as wall
siding and windows. In some instances, local health officials
identified painted surfaces whose lead content was three times the
accepted level. These officials told us that, if necessary, they may
inspect other areas in addition to the child's home, such as a
care-giver's residence, the child's previous residence, or the
child's school. Health agencies may also test the soil surrounding a
child's home.\5 After finding hazardous levels of lead in the soil
outside the home of one of the children in our test group, the New
Orleans Department of Health required that the soil be covered with
grass.
The four health agencies we visited communicated the findings of
their inspections to property owners. They advised 7 of the 11
property owners not only of the lead-based paint hazards but also of
the corrections necessary to abate or control the hazards. In the
remaining four cases, testing did not identify excessive lead levels
in the children's residences, but local health agencies advised the
children's parents of measures they could take to protect their
children from further exposure to lead. State and local laws assign
varying degrees of responsibility to property owners for completing
abatement, but they generally require owners to undertake some sort
of correction. At the time of our study, the seven property owners
that had been required to make corrections by the state or local
agency had responded as follows:
One property owner had not started to abate the hazards; as a
result, the local health agency had initiated legal proceedings.
One property owner had completed abatement measures, which the
local health agency had approved.
Five property owners had begun but not completed abatement
measures.
Because health agency officials generally do not know whether the
family of a child with elevated lead levels is receiving section 8
assistance, they do not--and are not required to--notify the local
public housing authority. As a result, the public housing authority
officials, although aware of HUD's regulations, are unaware of the
child's condition and do not implement HUD's regulations for testing
and abatement.\6 Because, as we previously reported,\7 no routine
mechanism exists for informing public housing authority officials
that children with elevated lead levels are living in section 8
housing, the children remain exposed to the risk of further lead
poisoning and the public housing authorities that administer the
section 8 programs--and perhaps HUD as well--incur the risk of
potentially costly lawsuits for unwittingly allowing hazards to
continue unabated.
According to a Minneapolis health agency official, shortly after our
visit, the local health agency began to give the local public housing
authority the addresses of children with elevated lead levels so that
the authority could determine whether these children were living in
section 8 dwellings. Other health officials told us they could give
a public housing authority the addresses of the residences that the
local health agency had begun to inspect. Health officials said they
would be reluctant to provide further information because they needed
to keep the names and conditions of individual children confidential.
Under HUD's regulations, a public housing authority may impose
sanctions against uncooperative property owners who do not abate
lead-based paint hazards. For example, a public housing authority
may stop rental payments to an owner if the owner fails to complete
abatement within 30 days of notification, even if the family
continues to reside in the section 8 dwelling. Only one of the four
public housing authorities included in our study had exercised this
leverage, and it had done so on 11 occasions. On one of these
occasions, for example, the Boston public housing authority stopped
rental payments when a property owner repeatedly failed to bring a
dwelling up to HUD's housing quality standards.
State and local abatement requirements may differ from federal
requirements. For example, under Massachusetts law, property owners
must hire an abatement contractor within 30 days and may be subject
to punitive damages for failing to abate hazards. In Louisiana,
property owners must complete abatement measures within 30 days.
However, health officials told us that abatement is generally not
completed within this period and the requirement is rarely enforced
for fear that enforcement may increase vacancy rates. In Minnesota,
property owners are required to complete abatement within a range of
times specified by various health agencies. However, local health
officials said their enforcement ability is limited.
--------------------
\4 The acceptable level of lead is defined by the particular state.
\5 A Minnesota health official told us that the standard for lead
contamination in soil, as defined by the state, is so low that
virtually any soil tested would be considered contaminated. Hence,
local health agencies require covering any bare soil surrounding a
residence identified as having lead-based paint hazards.
\6 Federal regulations require section 8 property owners, within 30
days of being notified by the public housing authority, to cover or
remove chewable surfaces whose lead content exceeds 1 milligram per
square centimeter.
\7 Lead Poisoning Notification (GAO/RCED-94-18R, Oct. 14, 1993).
APPLICABILITY OF THE ACT TO
SECTION 8 TENANT-BASED HOUSING
IS NOT CLEAR
------------------------------------------------------------ Letter :5
Whether the Lead-Based Paint Poisoning Prevention Act, as amended by
title X of the Housing and Community Development Act of 1992,\8
(the act) applies to section 8 tenant-based housing is not clear.
The act covers housing for which HUD administers housing assistance
payments, which could include section 8 tenant-based housing
assistance payments. However, the reported legislative rationale for
title X contains statements that are inconsistent with certain
provisions of the act that arguably apply to section 8 tenant-based
housing.
The act requires HUD to implement a schedule for conducting an
initial assessment of lead-based paint risks in federally assisted
housing and to complete this assessment by January 1, 2002.
According to section 302 of the act, as amended by title X, federally
assisted housing covered by the act includes housing for which HUD
administers assistance payment programs. Since both of the section 8
tenant-based programs--the certificate and the voucher
programs--involve assistance payments from HUD, both of these
programs would appear to be covered under the language of the act.
In contrast, the legislative history of title X raises questions as
to whether housing receiving section 8 tenant-based assistance is
covered under the act. According to the Senate report accompanying
title X,\9 housing receiving such assistance would be exempt from the
act's requirements because this housing tends to pass in and out of
federal housing assistance programs. The Senate committee was also
concerned about the practicability and equity of extending title X's
requirements to property owners providing section 8 tenant-based
housing.\10 HUD officials recognize that the applicability of the act
to section 8 tenant-based housing is uncertain; however, they believe
that the previous regulations for this housing are valid.
HUD is proceeding as if the act is applicable to section 8
tenant-based housing, and it plans to issue regulations to this
effect in 1995. According to HUD officials, these regulations would
implement a schedule to conduct the required risk assessments at a
date later than contemplated in the law in order to allow for ample
congressional and public comment. A more detailed discussion of the
act's applicability to section 8 tenant-based housing appears in
appendix II.
--------------------
\8 Title X is also called the Residential Lead-Based Paint Hazard
Reduction Act of 1992.
\9 Report by the Senate Committee on Banking, Housing and Urban
Affairs accompanying S. 3031.
\10 Echoing this concern, some experts say that if section 8 housing
is covered by the act, landlords will flee the program and fewer
affordable dwellings will be available for low-income tenants.
CONCLUSIONS
------------------------------------------------------------ Letter :6
The results of our matching addresses in local health agencies'
records with the addresses of section 8 residences in four cities
does not form a sufficient basis for proposing a more thorough
testing program. To obtain such a basis, HUD would need to gather
data on the cost and the impact on the low-income housing market of
implementing more stringent regulations. We agree with the Director
of HUD's Office of Lead-Based Paint that such information could be
obtained through a demonstration program that would determine the
costs of testing paint and would identify the impact of required
testing and subsequent abatement on the regulatory process and on
property owners' decisions to remain in the section 8 program. While
testing might be costly, requiring adequate tests and making their
results known would alert property owners and residents to potential
lead-based paint hazards.
Our work shows that HUD's regulations to protect children with
elevated lead levels from further poisoning are not being
implemented. Because the local health agencies we visited generally
did not report these children's addresses to public housing
authorities, the public housing authorities could not ensure that the
children's residences were being tested and that lead-based paint
hazards were being abated. We believe that better communication is
needed between local health agencies and public housing authorities,
as well as between section 8 landlords and public housing
authorities. We further believe that HUD has a responsibility to
ensure that public housing authorities receive the information they
need to protect children with elevated lead levels from further
poisoning.
Because the applicability of the Lead-Based Paint Poisoning
Prevention Act, as amended, to section 8 tenant-based housing is
unclear, the legal framework governing the federal government's
responsibility for protecting children living in such housing from
lead poisoning and the means the federal government uses to carry out
that responsibility are in question. Nevertheless, HUD officials
have interpreted the act as applicable and are planning to issue
implementing regulations for section 8 tenant-based housing. An
amendment to the act could clarify whether the Congress intended the
act to apply to this housing and could provide HUD with clear policy
guidance for implementing the act.
RECOMMENDATIONS
------------------------------------------------------------ Letter :7
To determine whether requiring more rigorous inspection and testing
in section 8 tenant-based housing is practicable and whether such
requirements are likely to affect landlords' participation in the
section 8 program, we recommend that the Secretary of HUD conduct a
demonstration program that draws on the work of the Task Force on
Lead-Based Paint Hazard Reduction and Financing. This demonstration
program should develop the information needed to (1) estimate the
cost of testing section 8 tenant-based housing for lead-based paint
hazards, (2) assess the likely response of section 8 landlords to new
requirements for such testing, and (3) recommend to the Congress
whether HUD's regulations should be changed to reflect the
demonstration program's findings.
To better ensure that individuals receiving section 8 tenant-based
assistance are obtaining safe housing as required and that children
whose blood contains elevated levels of lead are protected from
further exposure to lead-based paint hazards, we recommend that the
Secretary of HUD
require, as a condition for receiving housing assistance payments
and annually renewing participation in a section 8 tenant-based
assistance program, that a property owner notify the public
housing authority if a local health agency finds that the
property contains a lead-based paint hazard and
require public housing authorities to (1) ask local health agencies
for the addresses of children with elevated levels of lead in
their blood and (2) match these addresses with the addresses of
section 8 tenant-based residences to determine whether HUD's
regulations should be implemented.
MATTER FOR CONGRESSIONAL
CONSIDERATION
------------------------------------------------------------ Letter :8
To resolve uncertainty about the applicability of the Lead-Based
Paint Poisoning Prevention Act, as amended in 1992, to the section 8
tenant-based housing assistance programs--uncertainty created by
inconsistencies between provisions of the act and statements in the
legislative report for the 1992 amendments to the act--the Congress
may wish to consider amending the act to clarify its applicability to
the section 8 tenant-based housing assistance programs.
Specifically, the Congress may wish to clarify section 302 of the act
to indicate whether section 8 tenant-based housing is considered
federally assisted housing under the act.
AGENCY COMMENTS
------------------------------------------------------------ Letter :9
The Senate Committee on Banking, Housing and Urban Affairs requested,
and the House Committee on Banking, Finance and Urban Affairs agreed,
that we not obtain written agency comments on a draft of this report.
We did, however, provide a complete draft of this report to HUD for
review and oral comment. Subsequently, we discussed the draft's
findings, conclusions, and recommendations with the Director of HUD's
Office of Lead-Based Paint Abatement and Poisoning Prevention. He
generally agreed with our findings and conclusions, and we
incorporated his comments as appropriate. He noted that in the
absence of new regulations for lead-based paint in section 8
tenant-based housing, HUD believes that current regulations are still
valid and will enforce compliance with them. In addition, he
generally agreed with our recommendations for a demonstration program
to estimate the cost and market impact of more rigorous paint testing
and for improved communication between local health agencies and
public housing authorities.
---------------------------------------------------------- Letter :9.1
We conducted our review between May 1993 and February 1994 primarily
at HUD headquarters and at HUD field offices and public housing
authorities in Boston, Minneapolis, New Orleans, and St. Paul. We
performed our work in accordance with generally accepted government
auditing standards. Further details on our objectives, scope, and
methodology appear in appendix I.
We are sending copies of this report to the appropriate congressional
committees and subcommittees, the Secretary of HUD; and the Director,
Office of Management and Budget. We will also make copies available
to others on request.
This work was performed under the direction of Judy A.
England-Joseph, Director, Housing and Community Development Issues,
who may be reached at (202) 512-7631 if you or your staff have any
questions. Major contributors to this report are listed in appendix
III.
Keith O. Fultz
Assistant Comptroller General
OBJECTIVES, SCOPE, AND METHODOLOGY
=========================================================== Appendix I
Section 1056(a) of the Housing and Community Development Act of 1992
requires us to assess the effectiveness of the federal government's
enforcement of and compliance with lead safety laws and regulations.
This provision also requires us to recommend changes that may be
needed in the Department of Housing and Urban Development's (HUD)
annual inspection procedures for identifying lead-based paint hazards
in housing that receives section 8 tenant-based assistance. In
response to these requirements, this report provides information on
the effectiveness of HUD's regulations for identifying lead-based
paint to ensure the safety of section 8 tenant-based housing,
the effectiveness of HUD's regulations for protecting children who
already have elevated levels of lead in their blood and live in
section 8 housing, and
the applicability of the Lead-Based Paint Poisoning Prevention Act,
as amended in 1992, to section 8 tenant-based programs.
In obtaining this information, we reviewed pertinent legislation and
legislative histories, program documentation, and federal lead-based
paint regulations. We discussed legal and regulatory issues with HUD
officials in Washington, D.C., including officials at the Section 8
Policy Branch, Office of Policy and Research, and Office of
Lead-Based Paint Abatement and Poisoning Prevention. We also spoke
with HUD officials in two regional offices and two field offices.
Our discussions and data-gathering activities focused on the private
sector's compliance with lead-based paint regulations and associated
inspection activities at public housing authorities (PHA) in four
major cities--Boston, Massachusetts; Minneapolis, Minnesota; New
Orleans, Louisiana; and St. Paul, Minnesota.
To obtain information on whether HUD's regulations effectively
protect children with elevated levels of lead in their blood--also
called EBL children--we tested the regulations at the four previously
named PHAs.\11 Our conclusions apply only to these PHAs, and we did
not attempt to identify the universe of EBL children who live in
section 8 tenant-based housing. We included New Orleans in our test
because Members of Congress expressed interest in the administration
of this PHA's programs. We included the other PHAs because they are
located in states that (1) require or encourage the screening of
children for lead poisoning and (2) direct local health agencies to
implement testing and abatement/control measures when lead-based
paint hazards are identified in an EBL child's home.
By selecting PHAs located in states that had these two requirements,
we were able to review the PHAs' implementation of HUD's testing and
abatement regulations when local health officials found that an EBL
child resided in a section 8 tenant-based dwelling. Also, these
requirements ensured that we could examine the coordination between
the PHAs and the local health agencies. Finally, we chose these four
PHAs because collectively they administered over 16,000 section 8
tenant-based dwellings. Although this total represents only 1
percent of all section 8 tenant-based housing nationwide, it is
substantial for only four PHAs. In addition, the Boston and New
Orleans PHAs are among the top 25 nationwide in terms of the number
of participants in either the voucher or the certificate program.
To examine the PHAs' compliance with HUD's testing and abatement
regulations after an EBL child was identified through the health
screening process, we identified the EBL children living in section 8
tenant-based housing in the four cities included in our study. We
contacted local health agencies in each city to obtain the addresses
of EBL children and cross-matched these addresses with the addresses
of PHAs' section 8 tenant-based residences. The data we obtained
from the health agencies generally covered periods of from 1 to 2
years during calendar years 1992 and 1993, as shown in table I.1.
Also included in the table are the number of addresses of EBL
children we obtained from the health agencies and the number of
section 8 addresses that we cross-matched to this information.
Table I.1
Cross-Matches of EBL Children With
Section 8 Addresses
Number of
Number of section 8
Time addresses tenant-
period of EBL based
Location covered children addresses
------------------------ -------- ---------- ------------
Boston 8/1/92
to 7/ 331 6,487
31/93
Minneapolis 1/1/92
to 7/ 678 1,663
25/93
New Orleans 1/1/92
to 6/ 147 5,782
16/93
St. Paul 1/1/92
to 7/ 215 2,920
16/93
============================================================
Total 1,371 16,852
------------------------------------------------------------
Although we identified many potential matches, discrepancies existed
between the information provided by the local health agencies and the
PHAs. For example, between the list of addressees provided by the
St. Paul Department of Health and that provided by the St. Paul
PHA, we found 24 potential matches. However, one list's data did not
always match the other's. For example, an address on one list
sometimes included words or numbers--such as "avenue", "street", or
an apartment number--that did not appear on the other list. For our
study, therefore, we selected 11 addresses of EBL children that
completely matched the addresses of section 8 residences. We
considered this a manageable number of cases to assess in the time
allotted to us.
We determined the four PHAs' compliance with federal testing and
abatement regulations by reviewing the PHAs' tenant files and
inspection records and discussing this documentation with PHA
officials. We also obtained information from and spoke with local
health department officials responsible for identifying EBL children
and conducting inspections for lead-based paint hazards in these
children's homes. We did this to familiarize ourselves with local
and state procedures for screening children and identifying
lead-based paint hazards.
To determine the effect of federal regulation on the PHAs' success in
identifying lead-based paint hazards, we reviewed the federal laws
and regulations that pertain to PHAs' inspection responsibilities.
We discussed these matters with HUD officials in two regional
offices--Boston and Chicago--and at the field offices in Minnesota
and Louisiana. We also reviewed inspection activities at the four
PHAs and discussed our reviews with PHA officials, including
inspectors responsible for inspecting section 8 tenant-based housing
for compliance with federal housing quality standards. In addition,
we observed inspections conducted by officials of the New Orleans
PHA.
To provide information on the applicability of the Lead-Based Paint
Poisioning and Prevention Act, as amended in 1992, (the act) to
section 8 housing, we prepared a legal analysis on the exemption of
section 8 tenant-based programs from the act. We also obtained a
legal opinion from HUD's Office of General Counsel on the issues of
applicability and exemption. In addition, we discussed these issues
with HUD headquarters officials, including officials at the Office of
Lead-Based Paint Abatement and Poisoning Prevention. We also
reviewed the legislative history of the act, which includes
legislative reports on the rationale for the 1992 amendments.
We conducted our fieldwork between May 1993 and February 1994 in
accordance with generally accepted government auditing standards.
--------------------
\11 Because there are over 3,100 independent public housing
authorities nationwide, each with varying operating characteristics,
a much more extensive and time-consuming data-gathering effort would
be needed to portray all the ramifications of regulatory compliance
across the country.
APPLICABILITY OF THE ACT TO
SECTION 8 TENANT-BASED HOUSING IS
UNCERTAIN, AND CURRENT REGULATIONS
DO NOT IMPLEMENT EARLIER LAW
========================================================== Appendix II
The applicability of the Lead-Based Paint Poisoning Prevention Act,
as amended by title X of the Housing and Community Development Act of
1992,\12 (the act) to section 8 housing receiving tenant-based rental
assistance is not clear. The Senate Committee on Banking, Housing
and Urban Affairs, in its explanation of the amendments made by title
X, stated that this type of housing would no longer be covered by the
act. However, the act's language still arguably covers section 8
tenant-based housing, and in developing new regulations, HUD is
assuming that the act still covers this housing. Therefore, HUD is
still planning to revise its regulations to reflect the act's new
requirements.
Current federal regulations covering the identification of lead-based
paint in section 8 housing not only predate title X but also
generally predate legislation enacted 6 years ago--the Housing and
Community Development Act of 1987--which similarly required changes
to HUD's regulations. The 1987 act mandated significant changes in
the way HUD was then and is still managing and regulating the federal
response to the problem of lead-based paint in homes. However, HUD
did not issue regulations that fully implemented the provisions of
the 1987 act.
--------------------
\12 Title X is also called the Residential Lead-Based Paint Hazard
Reduction Act of 1992.
APPLICABILITY OF THE ACT TO
SECTION 8 TENANT-BASED HOUSING
IS NOT CLEAR
-------------------------------------------------------- Appendix II:1
Before the enactment of title X, residential housing receiving
section 8 tenant-based assistance was covered by the Lead-Based Paint
Poisoning Prevention Act, enacted in 1971. The passage of title X,
however, has left unclear whether such housing continues to be
covered. This uncertainty comes from two views of the act's
applicability to section 8 tenant-based housing.
The first view is expressed in the explanation by the Senate
Committee on Banking, Housing and Urban Affairs of the amendments to
the act made by title X. According to the Committee, the tendency of
this housing to pass in and out of the federal assistance programs
warranted its exemption from the act. If this housing were subject
to the act's provisions, its owners would have to meet more stringent
requirements than private landlords--a situation that the Committee
considered unworkable and, in some respects, inequitable.
Furthermore, language in title X suggests that section 8 tenant-based
housing is exempted from title X's requirements. The section of
title X that amended section 302 of the act, which sets forth
requirements for housing receiving federal assistance, is entitled
"Evaluation and Reduction of Lead-Based Paint Hazards in Federally
Assisted Housing." In defining the term "federally assisted housing,"
title X specifies residential dwellings receiving project-based
assistance. This strongly suggests that the dwellings receiving
tenant-based assistance under section 8 (that is, dwellings covered
by the certificate and voucher programs) are not included in the
definition of "federally assisted housing." Therefore, in detailing
the requirements to reduce lead-based paint hazards in "federally
assisted housing," title X appears to have excluded section 8
tenant-based housing.
Nonetheless, substantial evidence supports the second and opposite
view that the act continues to cover the section 8 tenant-based
certificate and voucher programs. Most importantly, title X left
untouched the wording in the act that previously encompassed section
8 tenant-based housing, namely, "any existing housing which may
present [lead-based paint poisoning] hazards and which is covered by
an application . . . for housing assistance payments under a
program administered by the Secretary [of HUD]."
Additionally, title X changed the title of section 302 of the
Lead-Based Paint Poisoning Prevention Act, which details that act's
requirements for federally assisted housing, to "Requirements for
Housing Receiving Federal Assistance." While title X defines the term
"federally assisted housing" to exclude tenant-based housing (as
previously explained), the term "housing receiving federal
assistance" is not defined. In HUD's view, the term "housing
receiving federal assistance" is, perhaps, broader than the term
"federally assisted housing." One could argue that the term is
similar in meaning to the phrase "housing which is covered by ...
housing assistance payments," which is found in the act itself and
which, by its terms, covers section 8 tenant-based housing. Thus,
both by its title and its substantive terms, the act still arguably
encompasses section 8 tenant-based housing.
HUD states that in light of the uncertainty over whether the Congress
intended to exclude housing receiving section 8 tenant-based
certificate and voucher assistance, the Department is proceeding on
the assumption that this housing continues to be covered by the act.
HUD is currently drafting regulations to implement the provisions of
title X, including those provisions amending the Lead-Based Paint
Poisoning Prevention Act. According to HUD officials, these
regulations will address the issue of whether housing receiving
section 8 tenant-based certificate and voucher assistance is covered
under the act. Furthermore, according to HUD officials, the Task
Force on Lead-Based Paint Hazard Reduction and Financing, established
under title X, will also address this issue.
CURRENT SECTION 8 PROGRAM
REGULATIONS DID NOT IMPLEMENT
1987 LEGISLATIVE REQUIREMENTS
-------------------------------------------------------- Appendix II:2
Under the Housing and Community Development Act of 1987, HUD was
required to establish procedures to
eliminate, as far as practicable, immediate hazards due to the
potential presence of lead in exterior and interior house paint;
test all surfaces for lead-based paint using an approved X-ray
fluorescence analyzer or a comparable approved method; and
base any detection and elimination procedures on criteria that
measure the condition of the housing rather than the health of
the housing's residents.
HUD amended its regulations to implement the 1987 amendments for its
public and Indian housing programs and announced its intention to
amend other program regulations (such as those of the section 8
program) at a later date. In fact, because of what it said were
difficulties in implementing the requirements of the 1987 amendments,
such as the costs involved, HUD did not amend its other program
regulations, including those covering section 8 housing, except in
minor ways. The Senate Committee on Banking, Housing and Urban
Affairs criticized HUD for not amending the section 8 program's
regulations:
"The Committee notes that HUD has failed to update its Section 8
regulations to reflect the important changes mandated by the
1987 amendments to the Lead-Based Paint Poisoning Prevention
Act. As a result, HUD's regulations and the current
implementation of tenant-based Section 8 programs are directly
at odds with the requirements of current law."
Because HUD had problems implementing the 1987 amendments, the
Congress enacted the Residential Lead-Based Paint Hazard Reduction
Act of 1992, which, as previously noted, is title X of the Housing
and Community Development Act of 1992. Title X redirects federal
lead-based paint policy toward what the Congress considers a more
cost-effective and practical approach. For example, the definition
of lead-based paint hazard has been changed to exclude intact
lead-based paint unless it is on accessible (or chewable) surfaces,
friction surfaces, or impact surfaces. Additionally, title X
provides for using temporary measures, called interim controls, in
many circumstances. Interim controls are designed to prevent
exposure to lead hazards but do not necessarily eliminate the sources
of exposure. (Before the enactment of title X,\13 HUD's only option
was to require the elimination of sources of exposure.) HUD is
required to issue implementing regulations for the act in 1995, but
HUD officials stated that the Department is far from developing, not
to mention issuing, updated regulations to reflect the act's new
requirements.
--------------------
\13 The Residential Lead-Based Paint Hazard Reduction Act of 1992 did
not change the "housing" approach to reducing lead-based paint
hazards adopted by the 1987 amendments. Title X also retained the
Lead-Based Paint Poisoning Prevention Act's caution that "measurement
criteria be based on the condition of the housing rather than the
health of the residents . . . The [Senate] Committee [on Banking,
Housing and Urban Affairs] in no way intends to retreat from the
decision made in the Housing and Community Development Act of 1987
that federal policy should be to prevent poisonings, not to react
once poisonings occur." S. Rep. No. 332, 102nd Cong., 2nd Sess.
113 (1992).
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix III
RESOURCES, COMMUNITY, AND ECONOMIC
DEVELOPMENT DIVISION, WASHINGTON,
D.C.
Eric A. Marts, Assistant Director
CHICAGO REGIONAL OFFICE
John A. Wanska, Regional Management Representative
Gwenetta A. Blackwell, Evaluator-in-Charge
Sharon E. Timmins, Staff Evaluator