New Haven and lead: What has the Elm City done to combat its lead crisis?

New Haven and lead:
What has the Elm City done to combat its lead crisis?

Published on September 9, 2019

When Nyriel Smith was two, her mother began to notice troubling changes in her behavior. It was how Nyriel interacted with language, Nichelle Hobby said, that alerted her to the fact that something was wrong. It wasn’t that Nyriel was mispronouncing certain words but rather that she seemed to be forgetting what they meant entirely.

“It’s like, I can tell her ‘hey, can you get your towel?’ And she looks at me like, ‘Towel, okay.’ And walks past the towel,” Hobby said.

In July 2018 — about four months after Hobby first moved into the apartment — a blood test detected elevated levels of lead in Nyriel’s blood. According to Hobby, prior to the move, Nyriel had a normal blood lead level. Hobby said she notified her landlord about Nyriel’s blood test but was shut down and told there was no lead in the apartment. Over the next several months, Nyriel’s blood lead levels fluctuated. In February 2019, she tested at 11 micrograms per deciliter of blood, 6 micrograms higher than the Centers for Disease Control and Prevention reference level of 5 µg/dl. This reference level identifies children “who have been exposed to lead and who require case management,” according to the CDC website.

“There is no purpose for lead in the body,” said Mellisa Pensa, a pediatrician in Fair Haven and the associate program director of the Yale School of Medicine’s Occupational Health & Environmental Medicine Program.

In children, exposure to even small amounts of the toxic metal can cause neurological problems, drops in IQ, behavioral issues and learning disabilities. And the damage caused by lead accumulates over time — it doesn’t simply go away when a child is removed from a hazardous environment. Hobby said she’s noticed that as Nyriel, now three, has gotten older and talks more, she “still doesn’t really have a clear complete sentence too many times,” she said.

In 2015, the water crisis in Flint, Michigan drew national attention to lead poisoning after lead from the city’s pipes seeped into the city’s water supply. But in New Haven, the primary source of lead is from lead-based paint.

Years ago, paint manufacturers started adding lead to paint in order to make it brighter and more durable, said Carl Baum, a Yale pediatrician and the director of both the Yale Lead & Healthy Homes Program and the Center for Children’s Environmental Toxicology. Lead paint was not banned in the U.S. until 1978. According to Baum, houses built prior to that year are assumed to have lead-based paint until proven otherwise.

Like much of Connecticut, New Haven has an older housing stock. Old houses with deteriorating paint — paint that is chipping, peeling, or otherwise damaged — are more likely to be dangerous. According to the U.S. Environmental Protection Agency’s website, lead-based paint also has the potential to be hazardous when it is present on surfaces children can chew, like window sills or door frames. And when houses with lead paint are improperly or incompletely remediated, lead can settle in the soil, spreading further harm.

“Lead dust,” Baum said, “is very environmentally sticky.”

Furthermore, children are more vulnerable to lead poisoning than adults. This is partly because they are built to absorb metals like calcium for their growing bones, Pensa said. Their bodies cannot distinguish between a metal like calcium and a metal like lead, so children absorb lead at a higher rate than adults do. Additionally, developmental behaviors — like children’s tendency to put their fingers in their mouths — put them at higher risk of exposure.

Children with elevated blood lead levels are not treated medically until they reach 45 µg/dl, nine times the CDC’s reference level. Traditionally, prior to that level, doctors recommend removing the child from the harmful environment — but this environment is almost always their home.

“The problem starts in housing, and the solution starts in housing,” Baum said.

THE LEAD WAR IN THE ELM CITY

Currently, New Haven’s lead ordinance defines lead poisoning as 20 µg/dl or “any other abnormal body burden of lead as defined by the Center for Disease Control and Prevention.” Since 2012, the CDC has used a reference level of 5 µg/dl to identify children whose blood lead levels are “much higher than most children’s levels.” Prior to last November, the New Haven Health Department had inspected the homes of children with blood lead levels above 5 µg/dl.

Nyriel is one of two plaintiffs — the other is a 5 year old named Muhawenimana Sara — who represent a class of what Marx estimates is about 300 children in New Haven: children under six whose blood lead levels are between 5 µg/dl and 20 µg/dl. The class-action lawsuit that Marx and her team at New Haven Legal Assistance Association filed this May alleged that New Haven’s health department stopped inspecting and ordering abatements for the residences of children who tested below 20 µg/dl.

The difference between 5 µg/dl and 20 µg/dl is significant, Marx said. She estimates that in New Haven, there are about 300 children like Nyriel — children at or under age 6 with blood lead levels over 5 µg/dl but below 20 µg/dl. At 20 micrograms, that number drops to 12 children. “The New Haven Health Department’s dropping the ball on over 200 children,” she said.

Prior to filing the lawsuit, Marx said, “we sort of knew that [these inspections weren’t] happening, but we didn’t know it was a concerted, determined policy decision.”

In 2009, the Connecticut state legislature mandated that all children between nine and 36 months old be tested annually for lead exposure. The Connecticut State Department of Public Health is notified every time a child tests with an elevated blood lead level in both a finger prick and a venous blood draw. The department then reports all blood lead levels above 5 µg/dl  back to the New Haven Health Department, which receives a computer notification within about 48 hours of the blood draw, according to Marx.

“From our experience, it appears that this system works perfectly,” said Marx, who has litigated a number of previous cases involving lead against the city. “And then what happens from there has been very variable and very inadequate.”

The complaint, which names the City of New Haven, Mayor Toni Harp, former Health Department Director Byron Kennedy and former Director of Environmental Health Paul Kowalski, argued that in November 2018, the health department violated the city’s lead ordinance by shifting its policy to only conduct inspections of residences of children with elevated blood levels above 20 µg/dl. In June, then-Director of Health Byron Kennedy and a Health Department lead inspector admitted in court that the city had in fact loosened its lead policy in hopes of saving money, according to the New Haven Independent. In court, city officials added that they reduced the number of New Haven lead inspectors from five to two due to budgetary issues.

The complaint specifically accuses Harp of either instructing or agreeing to allow the change in policy, an allegation that mayoral spokesperson Laurence Grotheer denied in a Thursday interview with the News. Attorneys for Kennedy and Kowalski could not be reached for comment.

The lawsuit also accuses Harp, Kowalski and Byron of violating New Haven’s separation of powers by changing the city’s lead ordinance without going through its legislative arm, the Board of Alders, and of violating the city charter by changing the law with no public notice or comment.

Per the city’s current lead ordinance, the department is required to take action when a child tests with an “elevated blood level” — inspecting residences and issuing abatement orders to landlords.

Hobby said she never received any type of notification from the health department after Nyriel’s early blood tests. The class-action complaint filed in May alleges that the department made no effort to contact her after Nyriel’s July 2018 test. It also states that the department called the family twice in September 2018 after Nyriel had an additional test in August. But the department was not able to reach the family and made no further effort to contact them.

A month before the class action was filed, after a series of blood tests showing Nyriel’s elevated blood level, her attorneys requested a lead hazard inspection of her apartment. According to the complaint, the health department’s attorneys responded that they would not schedule an inspection.

Previously, Marx and New Haven Legal Assistance Association had litigated a number of other lead cases in New Haven, which alleged that the health department was failing to properly conduct inspections and issue abatement orders to landlords, among other charges. In each of the early lawsuits, Marx said, the judges ruled that the family should be moved to a hotel and that the city should take over abatement of the property.

Marx said that prior to the class-action lawsuit, the association offered to work collaboratively with the city to address the lead problem. Instead, she said, “the city turned and walked in the total opposite direction” by changing its lead policy on the advice of outside counsel. In an interview, Grotheer denied that the association had offered to work together with the city prior to the lawsuit.

Marx called the city’s position — which she said was to not act in cases in which children tested above 5 µg/dl but below 20 µg/dl — “outrageous.”

“It not only conflicts with the  plain language of the statute,” she said, “but it conflicted with the health department’s own interpretation of the statute. The health department for years prior had protected kids at 5.”

In June, Judge John Cordani ruled in favor of Nyriel and Sara, the two plaintiffs representing the class in the lawsuit. Though he did not address the class action in this ruling, Cordani agreed that New Haven’s definition of lead poisoning was in fact 5 µg/dl. He ordered the city to conduct inspections and ensure abatements of Nyriel and Sara’s apartments.

In July, Mayor Harp announced that the city would revert back to its practice of conducting inspections for children with blood levels above 5 µg/dl. At a press conference, Harp said that the health department would conduct full inspections for such children. But Roslyn Hamilton, who had been appointed to serve as the city’s interim director of health, contradicted her, according to the New Haven Independent.

“We’re not doing full inspections. We’re not using the XRF machines, I don’t think,” she said.

Harp fired back, the Indy reported. “Yes we are,” she said at the press conference.

Also in July, Kowalski retired after being placed on administrative leave. Kennedy had departed from the health department in April, after taking a job at the Connecticut Department of Corrections.

After Cordani ruled in favor of Nyriel and Sara in June, the city continued to fight against class certification in the lawsuit. In August, Cordani certified the class, meaning that children under 6 years old with blood lead levels between 5 µg/dl and 20 µg/dl can sue the city jointly. The order excluded children living in public housing from the class, a decision NHLAA has continued to fight, including in a motion issued on Aug. 21. Counsel for the city replied on Sept. 6, opposing the New Haven Legal Assistance Association’s motion for reconsideration of the class definition.

“Unfortunately, I’m not rich. I can’t just move like this and that,” Hobby said sitting on the stoop of her Fair Haven apartment, paint peeling at the edges of the front steps. “I had to stay here. And if the landlord and the state wasn’t trying to do what they had to do, I had to go and find a way to make them do what they had to do. And it’s a shame it took a year.”

LEAD’S LOADED HISTORY

Lead started being identified as a toxin around the turn of the 20th century, said David Rosner, who studies sociomedical sciences and history at Columbia’s Mailman School of Public Health and in 2013 co-authored the book “Lead Wars: The Politics of Science and the Fate of America’s Children.” By the 1920s, he said, the substance was understood as a “serious neurotoxin for children.”

At the time, children were suffering from convulsions, comas and even dying from lead exposure. In 1921, 25 countries — including France, Germany and Sweden — signed an accord which banned the use of lead-based paint. The U.S. refused to sign, which Rosner said was mainly because “the lead industry was much more powerful than the U.S. government.” The paint industry then embarked on a PR campaign dedicated to marketing lead paint to children, giving them toys, coloring books and costumes in the hope that children would encourage their parents to buy paint. All the while, Rosner added, the industry was aware that children were dying from lead exposure, but placed the blame on parents for not watching their children well enough, a narrative assigned particularly to parents of children of color.

The U.S. did not ban lead paint until 1978. And though some experts noted that lead levels have dropped dramatically since, Rosner added that research has continued to identify further harms from lead exposure.

“Every time we look we find new kinds of neurological and subtle problems that are plaguing children,” he said.

Though lead poisoning can affect all children — particularly in a city with aging housing stock — poor children are particularly vulnerable. Their houses are more likely to have chipping or peeling paint, and their parents are less likely to be able to relocate when lead hazards are discovered in their homes. Lead poisoning, Baum said, “has a strong association with poverty.”

Experts cautioned that that the consequences of lead exposure — including developmental delays, behavioral issues and drops in IQ — can be difficult to separate from other consequences of poverty, including other environmental health hazards more likely to affect poor children. “Brain development and intellect and creativity and everything else the brain does is very complicated, and it’s actually multifactorial,” Baum said, noting that factors such as nutrition and other resources can also affect brain development.

Pensa noted that children of color and poor children are “much more likely” to live in areas with environmental hazards, including but not limited to lead. “And their voices are less likely to be heard,” she added.

“Lead is a major indicator of a much larger problem we have in our culture and the racism that pervades it,” Rosner said, adding that governments claim it is too expensive to address lead because it primarily affects poor children. “It’s only because it’s so bound up with race and racism that it’s allowed to fester.” 

The fact that the Elm City shifted its lead standards shocked a number of experts outside of the city. Emily Benfer, an attorney who specializes in health justice issues, noted an increasing trend of cities and states requiring lead hazard inspections in accordance with the CDC reference value of 5  µg/dl.

“It was unethical and illegal for New Haven to move in the opposite direction; in fact, it flies in the face of reason and guarantees harm to the children the city is duty-bound to protect,” she wrote in an email to the News.

The CDC changed its lead reference value from 10  µg/dl to 5 in 2012. The new reference level was based on the number of children under 6 with blood levels higher than 5  µg/dl — only 2.5 percent. Experts agree that no level of lead is safe for children.

A few states, including Maine, Rhode Island and New Hampshire have passed legislation adjusting their lead threshold down to the CDC value. Connecticut’s state-wide standard is still 20 µg/dl, although the state passed legislation in 2007 to include 15 micrograms as an additional threshold if a child tested at that level or above in two tests taken three months apart. A bill pending in the Connecticut state legislature would bring the state’s standard down to the CDC reference value if passed.

Rosner noted that even 20 µg/dl has not been defined as safe since the 1980s or 1990s.

“The idea that at any point in New Haven’s history 20 [µg/dl] was considered okay is horrendous,” he said.

THE FUTURE OF LEAD IN NEW HAVEN

In August, the Harp administration submitted proposed amendments to the city’s lead ordinance to the Board of Alders. Harp has touted the proposed ordinance to demonstrate that the city has taken steps to conduct inspections and ensure abatements for children with blood levels above 5 µg/dl. At a mayoral forum in Yale’s Sudler Recital Hall on Aug. 30 with primary challenger Justin Elicker, Harp said that as it stands, the city’s current ordinance is “very, very, very, very broad.”

The city’s proposal states that the city’s “actionable blood level” would be 5 µg/dl. But critics argue that the proposed law actually guts the city’s existing ordinance, which Cordani ruled in June already defined 5 µg/dl as an action level via its dependence on the CDC reference level.

The city’s proposed ordinance “writes into city law what the city made out to be its policy back in November of 2018,” said Shelley White, a New Haven Legal Assistance Association attorney who works with Marx on the class-action lawsuit.

Proposed amendments to the lead ordinance give the health department more discretion in terms of how it conducts inspections and issues abatement orders of homes, White said. The proposed ordinance, for example, removes language from the current ordinance specifying how much time a landlord has to make an abatement plan and begin the process of abatement after an inspector discovers lead at a residence. The proposed amendments also state that the director of public health is “authorized” to inspect residences frequented by children, and that those inspections “may” include an epidemiological investigation for sources of lead.

After the forum, Harp responded to criticism of the proposed amendments by noting that the city has to make decisions about which apartments to inspect, and whether it should first target residences with the highest amount of lead.

“We want the health director to be able to make those decisions,” Harp said.

In response to a moderator question during the Aug. 30 forum, Harp said, “Look, we have made some mistakes when it comes to lead.” She stated once again that the city had reduced its number of lead inspectors due to a budget shortfall, but that her administration was in the process of hiring five more inspectors.

But Marx described the lead inspectors issue as a type of strawman: “The problem was not just a workload problem for the individual inspectors, the problem is with policies and protocols within the health department,” she said.

Hamilton, the interim health director, said that in addition to “perfecting policy,” the health department was figuring out how to coordinate between itself, the housing code inspector unit of New Haven’s Livable City Initiative and the housing authority.

“We need to hash it out internally,” she said. “But I don’t believe in hashing things out in public.”

In an interview last week, Hamilton said that the department was “working at five” p.m. — contacting parents and “looking at visible signs around the house” during inspections. She did not confirm whether or not these inspections were “full inspections.”  She added that what constitutes a “full inspection” should be defined by the health department. The New Haven Legal Assistance Association describes “full” inspections as physical inspections with X-ray fluorescence machines, dust wipes and soil samples.

Elicker, Harp’s challenger in the mayoral primary, criticized the city’s proposal at the mayoral forum on Aug. 30.

“The new proposal that Mayor Harp has suggested continues to loosen the already strong city lead level that we used to have that Mayor Harp dismantled,” he said.

Elicker also criticized the city’s “lack of enforcement to ensure that our children, who evidence shows are disproportionately brown and black, are not exposed to permanent brain damage.”

In an interview after the forum, Elicker disputed the mayor’s initial argument that the city had lacked the resources to inspect houses of children at 5 µg/dl, citing the mayor’s “$50,000 trip to China” and “credit card spending on fancy meals and trips.”

When Harp’s credit card spending came under fire last fall, Grotheer told the News that the charges fell within the scope of authorized government spending. “There is no wrongdoing alleged,” Grotheer said at the time. “These are all budgeted and approved and authorized expenses.”

The newly proposed ordinance would also allow the mayor to appoint members of the Lead Paint Advisory Committee — which has already started its meetings, though it is not an officially formed committee. At the panel’s first meeting in July, members criticized the city’s decision to draft legislation without input from the committee, the New Haven Independent reported.

“I think we currently have a lead advisory committee that’s not playing a role in helping to craft the legislation or make decisions about how the city should approach the issue of lead poisoning,” said Ward 21 Alder Steve Winter ’11 in an interview with the News.

White also criticized changes to the current lead ordinance which removed a requirement that “legal services” be present on the committee. When the New Haven Legal Assistance Association was created in 1964, she said, “it was under the auspices of city government.”

“So that’s why I feel very strongly that if the city is referring to legal services, they’re referring to us,” she said.

In an interview in August, Marx also expressed concern that the Harp administration was hoping to avoid the class-action lawsuit if the new law passes. “They’re hoping to pass an ordinance that will boot out everything anyway, because once you change the law, there’s no longer a case about the law,” she said. On behalf of the city, Grotheer disputed this claim.

“The proposed amended ordinance is consistent with a comprehensive remedy proposed by the court,” he said.

The legislative committee of the Board of Alders will hold a public hearing on the ordinance at 6 p.m. on Sept. 12.

Lead poisoning advocates say that the gold standard is primary prevention — inspecting homes for lead before children under 6 move into them, not after. “And yet we aren’t moving toward primary prevention for many reasons, especially lack of local and federal funding dedicated to it at this time,” Benfer wrote in an email to the News.

On Thursday, Nyriel’s attorneys filed an amended complaint in court, alleging that though the health department had conducted an inspection of her apartment in June and found lead hazards, it had not properly followed up on the inspection.

The amended complaint alleges that the abatement order the department issued to Hobby’s landlord did not specify which parts of the home required abatement, and that the city did not enforce the requirement that the landlord create an abatement plan or complete the abatement. Hamilton and Grotheer did not respond to requests for comment on behalf of the health department and city.

Back in Fair Haven, Nyriel was  getting ready to attend her pre-K orientation at Dr. Reginald Mayo Early Childhood School, New Haven’s public preschool.

In addition to the pre-K classes she will soon attend, Nyriel attends semi-monthly Early Childhood Assessment Team classes to help with developmental delays.

“I’m going to keep doing the things that I need to do to make sure my daughter is growing the way that she needs to grow,” Hobby said. “That’s all I can do.”

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