Lead Paint and Drinking Water in Maine – Now Under Even More Scrutiny, with More Enforcement and Liability Issues Coming

Ken Gray and Dixon Pike, Pierce Atwood LLP

Lead paint is a well-known problem for older homes, and lead in residential drinking water from historic plumbing is also a recognized issue in Maine.  Lead can be a serious problem if children or pregnant women are exposed at levels of concern.  Recent events in Auburn and Lewiston have heightened awareness, and are leading to action by federal and state officials.  It is virtually certain that this matter will lead to attention in other cities, in part, as a result of the recent drinking water issues in Flint, Michigan.

In 2015, the Auburn Water District alerted its customers that the drinking water had exceeded action levels in enough homes to require formal notification and an investigation into the cause, which is likely from customers’ plumbing systems as lead has not been detected in Lake Auburn water.  The Lewiston water system is not currently in non-compliance status, but levels are just under the action figure, probably for the same reason. And in early June, Maine news reports are suggesting that the drinking water testing protocols are not as stringent as they should be in light of EPA recommendations made earlier this year.

On the state level, the Maine Department of Health and Human Services (“DHHS”) recently proposed a more stringent standard (from 15 ug/dL to 5 ug/dL) for defining persons as “lead poisoned”.  If the proposed standard is adopted, more children and adults will fall into the “lead poisoned” category, raising concerns among persons who are tested.  Under the rules, DHHS can investigate, post a public notice of the lead hazard for tenants and owners, and order abatement within 30 days.

In May, the U.S. Environmental Protection Agency Regional Administrator announced an unusual inspection initiative in Lewiston-Auburn.  Starting in June, EPA will be inspecting work projects in Lewiston-Auburn to ensure that painting and renovation contractors, landlords, and property management companies are following EPA rules.  These federal rules closely regulate activities that disturb or renovate lead paint (as do state rules).  EPA rules also require notification to tenants of lead paint hazards.  Lewiston Mayor Robert Macdonald has just proposed targeting landlords with lead problems as soon as possible.

EPA has enforced its rules and exacted penalties from lead renovation contractors and landlords in Maine and elsewhere.  The Maine Department of Environmental Protection has also enforced its own rules on lead paint renovation.  DEP has reported they are gearing up to address more lead issues from all of these efforts.

It is highly likely there will be increased enforcement in the Lewiston-Auburn area.  While the immediate focus is on the Lewiston-Auburn area, this effort will likely bring closer scrutiny of older buildings in other parts of the State, as most cities and towns have housing stock of the same age, and news reports will raise visibility of the issue.  It also seems likely that there will also be additional blood testing, given greater awareness by the public.

If you have questions or concerns about the EPA and state lead notification requirements, contractor renovation re quirements, liability arising from leasing, or other lead-related matters, please contact Ken Gray (207-791-1212 or Kgray@PierceAtwood.com) or Dixon Pike (207-791-1374 or dpike@pierceatwood.com).

Original article dated June 7, 2016

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