Testimony of Don Ryan

Executive Director
Alliance to End Childhood Lead Poisoning

November 02, 1999

Senate Judiciary

Policy Driven Lawsuits

Good morning, Mr. Chairman and Members of the Committee.

My name is Don Ryan. I am executive director of the Alliance To End Childhood Lead Poisoning. I appreciate the invitation to testify before the Senate Judiciary Committee this morning.

The Alliance is a national, 501(c)(3), non-profit, public interest organization located in Washington, DC. The Alliance has been working since 1990 to protect children from lead poisoning through education, advocacy, and policy change. The Alliance anchors a loose-knit coalition of more than 250 state and local grassroots groups committed to lead poisoning prevention.

The Alliance.s goal is primary prevention, which means taking effective action to protect children before they are exposed to lead. We have been instrumental in shifting the national approach from waiting to react until after a child has been poisoned to ensuring that homes and apartments are safe from lead hazards in the first place. The Alliance was instrumental in Congresses enactment of the Residential Lead-Based Paint Hazard Reduction Act of 1992. This landmark law focused attention and resources on promptly and effectively controlling lead hazards in housing, especially lead-based paint and lead-contaminated dust hazards, which are by far the foremost cause of lead poisoning among US children. With the goal of ensuring that all children.s homes are lead-safe, the Alliance has worked over the past ten years to find cost-effective strategies for controlling lead hazards and has sought to develop and build consensus on maintenance and lead safety standards that are both workable and protective.

I will submit background information about the Alliance and our board of directors for the record. I should note that the Alliance does not accept donations from corporate and other interests with an economic stake in the issue, including: the lead and paint industries; the real estate and apartment industries; insurance companies; trial lawyers; lead hazard control contractors; or lead-safety product manufacturers. The Alliance has never initiated a lawsuit nor have we been involved in the suits now being filed against the lead-based paint manufacturers by state governments, by owners of lead-burdened properties, or on behalf of lead-poisoned children.

I should clarify at the outset that I am not a legal scholar and I am not prepared to comment generically about state suits to recover public health costs from those who have manufactured and marketed hazardous products. I would like to provide background information about childhood lead poisoning and its prevention, the challenges presented by lead-based paint in housing, the need for additional resources for source control, insights into how two-thirds of our housing came to contain lead-based paint, and reactions to the State of Rhode Island.s suit against the manufacturers of lead-based paint.

I believe the public interest can be well served by state and local government lawsuits against the manufacturers of lead-based paint. First, lawsuits by state and local governments offer a means to right a longstanding wrong by holding the lead-based paint manufacturers and the Lead Industries Association (LIA) accountable for their ill-gotten gains through unscrupulous and relentless promotion of a product whose dangers were clearly known. Second, these suits hold the potential to fill a critical gap in the resources required to control lead-based paint and dust hazards which threaten the intelligence, learning, and behavior of nearly one million preschool children. I want to make four points this morning:

That childhood lead poisoning remains a serious and unsolved environmental, health, housing, and educational problem that demands concerted action;

That substantial additional resources are required for source control strategies to protect children still at immediate risk for lead poisoning from lead hazards in their homes;

That fairness requires holding the manufacturers of lead-based paint accountable, particularly in light of their efforts to obscure scientific evidence, mislead the public, and promote the sale of lead-based paint despite their clear knowledge of its dangers; and

That the ultimate goal of protecting children at greatest risk for lead poisoning must guide the judgment of state attorneys general, judges and juries, and the defendants in these cases as well as legislative bodies that might themselves consider constructive solutions.

Child hood Lead Poisoning Remains a Pressing National Problem

By its nature, childhood lead poisoning is an environmental disease. There is no medical prescription to cure lead poisoning. The only solution is protecting children from continued exposure to lead hazards through source control.

Young children are most sensitive to lead.s toxic effects because their brains and nervous systems are still developing. Even at very low levels, lead exposure in childhood causes reduced intelligence and attention span, learning difficulties, and behavioral problems. The scientific evidence about lead.s adverse human health effects is beyond dispute, as summarized by the National Academy of Science.s objective and authoritative 1993 report, Measuring Lead in Infants, Children and Other Sensitive Populations.

Ironically, lead poisoning among US children is at once a stunning environmental and public health success story and a pressing and persistent problem that eclipses virtually all other environmental health threats. The past three decades have seen dramatic decreases both in average blood lead levels in the US population and in the number of children with elevated blood lead levels. These public health gains are positive proof that regulating environmental exposures to toxic substances directly benefits human health.

Nevertheless, lead poisoning still affects almost one million preschoolers in the US despite controls on point source emissions and bans on lead in new paint, gasoline, food cans and plumbing supplies. The latest national health data available (NHANES III) estimate that 890,000 children aged 1-5 have blood lead levels 10 ug/dL or above, the current level of concern. A number of recent studies have observed adverse neurological effects at even lower levels. The risk of lead poisoning is disproportionate across population subgroups: children from low-income families are eight times more likely to have elevated blood lead levels than children from upper income families; African-American children are at five times higher risk than White children.

The Challenge Posed by Lead Paint in Housing and the Need for
Expanded Source Control

Most children with elevated blood lead levels are poisoned by exposure to lead hazards in their own homes. The major source of
their exposure is lead-based paint, estimated by the Department of Housing and Urban Development.s 1990 Report to Congress to be
present in 64 million homes and apartments, nearly two-thirds of the entire US housing stock. Intact lead-based paint rarely poses
an immediate hazard, although children can be highly poisoned by chewing protruding surfaces coated with intact lead-based paint. The foremost pathway of exposure in children is ingesting lead- contaminated dust, which typically is produced by lead-based paint that is deteriorating or disturbed by repainting or remodeling. Toxic lead dust settles on floors and other surfaces and gets on children.s hands and toys and then into their mouths.

Lead-based paint in two-thirds of all US housing presents an enormous challenge to the nation. Preschool children, of course, are directly affected. But lead-based paint in housing poses a complex public policy dilemma and imposes multiple burdens on many industries and interests. To name a few: rental property owners fear lead poisoning tort suits by tenants; insurance companies seek to refuse liability coverage wherever possible; lenders are nervous about properties with lead-based paint; affordable housing providers face the increased costs imposed by lead-based paint; real estate agents take pains to get disclosure forms signed; homeowners fear that lead-based paint will reduce equity in their homes; painters and remodelers need special training in lead safety; health care providers dread parents. questions about lead poisoning (there is no medical silver bullet); the Medicaid system struggles mightily to screen children at highest risk; public health agencies scramble to give poisoned children follow-up care; and our public schools must teach children unable to concentrate and unready to learn.

Over the past few decades, various federal, state and local agencies and private sector interests have searched for solutions to childhood lead poisoning through a multitude of strategies: from screening and treating lead-poisoned children to educating parents and caregivers; from certifying specialized lead contractors to empowering community-based organizations; from training apartment maintenance supervisors in lead safety to educating painters and remodelers in how to avoid creating lead dust hazards; from categorical grants targeted to highest risk housing to lead safety regulations that govern all federal housing assistance programs; from incentives for voluntary compliance to targeted code enforcement; from reliance on market forces to command and control state laws. Despite the
contributions of these various strategies, lead poisoning remains an unfortunate reality for almost one million preschool children.
While the Alliance will continue to pursue all promising strategies, including public education and market-based solutions, the inescapable reality is that committing substantial additional resources to source control is the only way to prevent childhood lead poisoning. Without additional resources for controlling lead-based paint and lead-contaminated dust hazards in housing, future generations of children are destined to continue to be poisoned by lead hazards in their homes.

The Manufacturers of Lead-Based Paint Should Be Held Accountable
for Their Misdeeds

One group has been conspicuously absent from efforts to protect children from lead poisoning: those who are directly responsible
for putting the lead in paint that is now present in nearly two- thirds of all US housing. Suits by states such as Rhode Island serve the public interest by forcing the lead-based paint manufacturers and their agent, the Lead Industries Association, to be held accountable for improperly manufacturing and marketing lead-based paint and by rightfully forcing these companies to help defray the costs of source control to protect children from lead hazards in their homes. The unscrupulousness of these companies. and LIA.s activities to cover up the dangers of lead- based paint and promote its sale for decades after the dangers were clearly understood underscore the fairness of such suits by state governments.

People.s first reactions to the Rhode Island case seem to vary based on their presumptions about the lead-based paint industry's culpability or innocence. Those who view the manufacturers of lead-based paint as benign argue that it is unfair to hold past acts to the standards of current knowledge. I am convinced that an objective evaluation of the historical record will reveal that the dangers of lead-based paint have been well known since at least the turn of the century and that the lead-based paint manufacturers and the LIA, with clear knowledge of these dangers, undertook a callous, calculated, decades-long campaign to manufacture and market lead-based paint. Statements by industry leaders and LIA.s own reports offer the most chilling testimony about the industry.s success in obscuring the scientific evidence, misdirecting scientific inquiry, suppressing publication of damning studies, and delaying government legislation and regulation of dispersive uses of lead.

This Committee hearing is not the proper forum for judging the actions of the lead industry. One benefit of the Rhode Island suit is to ensure that this historical record is carefully examined and that LIA.s and the lead-based paint manufacturers actions are fairly judged. I should note, however, that litigation against the lead-based paint manufacturers over the past decade has already uncovered sufficiently incriminating evidence of wrongdoing to preclude dismissing out-of-hand the charge that these suits are frivolous.

State Suits Against Lead-Based Paint Manufacturers Must
Instrumentally Advance Prevention

As an advocate for children.s health, I want to emphasize that ultimate effectiveness of suits against the lead-based paint manufacturers is the extent to which resources are actually devoted to controlling lead hazards in the homes of children at highest risk. The recent tobacco litigation and settlements offer many lessons for state suits against the manufacturers of lead- based paint. Most importantly, the public interest requires more than simply punishing companies for their culpability; the relief sought and the proceeds of such cases should remedy the problem at hand rather than balancing state budgets or funding unrelated activities.

In this regard, the Rhode Island suit deserves note because the relief it seeks from the lead-based paint manufacturers will instrumentally advance prevention. The lion.s share of the relief sought will ensure source control by requiring the defendants to detect and abate lead hazards in Rhode Island.s housing and neighborhoods. In addition, the case seeks funding for ongoing blood lead screening and educational programs. The Alliance believes that, in addition to giving parents practical information about what they can do to help protect their children, educational strategies must encompass training of property owners, community groups, painters, and remodelers in lead-safe work practices and certification of expert lead safety consultants and abatement contractors in order to advance prevention effectively.

I would urge any and all states now developing suits against the manufacturers of lead-based paint to focus relief on source control to protect children at immediate risk. It is not sufficient simply to transfer funds from the companies responsible to state governments, even though that does serve to punish their misdeeds. The vast preponderance of the relief sought and the proceeds derived from such suits must be devoted to cleaning up lead hazards in the homes of children at highest risk for lead poisoning. These same principles of prevention and public health protection should guide any legislative action.

I have outlined the dimensions of the still unsolved problem of childhood lead poisoning, the challenges presented by lead-based paint in housing, the necessity for additional resources to control lead hazards in the homes of children at highest risk, and the appropriateness of holding liable the manufacturers of lead-based paint and the Lead Industries Association. I believe that Rhode Island.s lawsuit against the manufacturers of lead- based paint directly serves the public interest by holding the responsible companies accountable and by filling the critical gap in resources needed for prevention through source control. Indeed, I believe that such suits may be the only way to secure
the resources that are required to control lead-based paint and lead-contaminated dust hazards in housing to protect the almost one million children now affected by lead poisoning as well as future generations of children who will occupy these homes and apartments.

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