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CITY-WIDE COALITION v. PHILADELPHIA HOUS. AUTH.

March 12, 1973

CITY-WIDE COALITION AGAINST CHILDHOOD LEAD PAINT POISONING et al.
v.
PHILADELPHIA HOUSING AUTHORITY, et al.


Van Artsdalen, District Judge.


The opinion of the court was delivered by: VAN ARTSDALEN

VAN ARTSDALEN, District Judge.

 On January 23, 1973, a preliminary injunction issued enjoining the defendant, Department of Housing and Urban Development, its agents, employees and officers

 
from selling, conveying or transferring title or ownership, or from contracting to do any of the same, as to any residential housing structure located within the geographical limits of the City of Philadelphia, Pennsylvania, to any person or entity for the purpose of utilizing such structure for human habitation until and unless it completely removes from such premises on all surfaces, including exterior surfaces, lead based paint in such manner and in accordance with all the rules and regulations of the Department of Housing and Urban Development of the United States Government, and with all the rules and regulations of the Department of Public Health of the City of Philadelphia.

 And in order to be assured that these regulations are carried out, the Department of Housing and Urban Development is

 
further enjoined from transferring title to such properties for such purposes until and unless it first requests from the City of Philadelphia, Department of Public Health, an inspection of the premises to see that it does comply with all of the rules and regulations of the City of Philadelphia, Department of Public Health, said request for such inspection to be made at least one week prior to the date of the transfer of title.

 The federal defendants have now moved for an order staying the preliminary injunction pending a possible appeal. They candidly admit that an appeal has not been definitely decided upon and that such a decision cannot be expected "until all agencies and departments concerned have had an opportunity to review [the order] and analyze its national implications." The motion is accompanied by the affidavit of William D. Patterson, Area Director, Philadelphia Area Office of the Department of Housing and Urban Development *fn1" (hereinafter HUD) attesting to the "considerable burden" placed on HUD by the order.

 The affidavit, in effect, contends that the stay should be granted because of the extreme financial burden placed on HUD if it must comply with the City of Philadelphia, Department of Public Health regulations concerning removal of lead-based paints on housing owned or held by HUD. The second contention is that the order precludes HUD from completing settlement on houses that were under agreements of sale at the time of the entry of the preliminary injunction. I was aware of the financial burden when the order was made, and reject this contention as a valid reason to stay the order. Concerning any existing agreements of sale, HUD and/or the purchasers may, by motion, on an individual ad hoc basis seek relief from the injunction provided no children will be residing in the house and the purchasers are fully advised of the condition of the house, the potential danger, and the regulations of the City of Philadelphia, Department of Public Health concerning removal of lead-based paint. *fn2"

 The preliminary injunction order entered on January 23, 1973, was issued directly from the bench in view of my finding that the situation was of such an immediate and inherently hazardous nature that no further delay could be tolerated. At that time I indicated that the tentative findings of fact would be subject to revision from time to time. This motion affords the court an opportunity to more fully express and discuss the findings of fact and conclusions of law contained in the January 23rd Order.

 FINDINGS OF FACT

 1. Title 42 U.S.C. § 4821 mandated that HUD submit to the Congress, by January 13, 1972, a report from the Secretary of his findings and recommendations relative to

 
the nature and extent of the problem of lead-based paint poisoning in the United States, particularly in urban areas, and the methods by which lead-based paint can most effectively be removed from interior surfaces, porches, and exterior surfaces to which children may be commonly exposed, of residential housing.

 2. The Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. § 4801 et seq., acknowledged the ever growing fund of knowledge on the subject of childhood lead paint poisoning and the recognition that lead paint poisoning was a serious and sometimes irreversible disease causing brain damage, and even death, to young children, particularly in urban, and most especially in inner city, areas.

 3. HUD has not yet complied with the Congressional mandate and its report is now more than one year overdue.

 4. Despite the fact that no report has been transmitted to Congress, HUD has issued rules and regulations concerning lead-based paint use and removal in all federal and federally-assisted construction and rehabilitation projects. 37 Fed. Reg. 22732 (October 21, 1972).

 5. HUD is complying with these regulations with regard to presently owned HUD properties and has indicated its intention to comply as to after acquired properties.

 6. HUD regulations prohibit the use of lead-based paint on surfaces readily accessible to children under 7 years of age in any residential structure undergoing federally-assisted construction or rehabilitation. § 35.5(b).

 8. Such defective paint conditions are presumed to contain lead-based paint unless otherwise shown by testing to be safe. (§ 35.16). All hazardous surfaces (i.e., cracking, scaling, peeling and loose lead-based paint accessible to children under 7 years of age)

 
shall receive adequate treatment to prevent the ingestion of the contaminated paint. Particular care shall be taken to correct conditions of cracking, scaling, peeling, and loose paint. . . . All such surfaces which require treatment shall be thoroughly washed, sanded, scraped, or wire brushed, so as to remove all cracking, scaling, peeling, and loose paint before repainting.

 (§ 35.18). Such "treated" surfaces must be painted over with at least two coats of non-lead paint and in all cases where such treatment is impractical the paint must be removed or covered over. (Id.).

 9. The practical effect of the regulations is that HUD removes only cracking, scaling, peeling or loose paint and renders the surface "tight" but does not remove the ...


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