NE Portland demolition dust-up highlights fears over lead paint
Parents of toddlers living near a turn of the century Northeast Portland bungalow were frantic as its demolition approached.
The neighbors knew paint peeling from the exterior siding and trim contained lead, and the builder preparing to knock it down had offered no guarantee he'd spray the site with enough water to keep lead-laden dust somewhat at bay.
Adding to their unease, the neighbors didn't know when the demolition of the ramshackle, 900-square-foot house on Northeast 10th Avenue would occur.
Some called and emailed the owner, Peter Kusyk, a prominent builder who has demolished nine other homes within 10 blocks of the inner Northeast Portland property. Neighbor Elisabeth Neely received a reply that included a letter from Kusyk's environmental consultant stating that lead levels were well below the maximum allowed. Kusyk, president of Firenze Development, quoted the consultant's letter to other neighbors.
The problem was, as neighbors were to learn, the letter referred to lead levels in water running off a landfill. It had nothing to do with lead dust flying from a demolition.
That the irrelevant test had been circulated to ally neighbors' concerns did nothing to smooth ruffled feathers. "I like to feel people are generally trustworthy. So it's horrifying when they're not," said Miriam Zellnik, whose backyard abuts the 10th Avenue property. "I don't like being lied to."
Measuring lead content
The experience of the neighbors illustrates both limits of the city's demolition rules and the challenges facing Commissioner Chloe Eudaly as she steps into the regulatory vacuum. Her proposed remedy puts her between some contractors, who claim new regulations aren't needed; a local builders' association which agrees something must change; and many residents, who feel burned by the city's lack of regulation of demolitions, which they say has put their health — and that of their kids — at risk.
"Lead's just not safe," says Zellinik. "I have children at home. It's important to feel safe in your home."
On Aug. 29, 2016, Kusyk submitted plans to raze the house at 4015 N.E. 10th Ave. One of Northeast Portland's most active builders, Kusyk has demolished 10 old homes in the inner Northeast Sabin/King neighborhood since 2011. (See related story: Historic NE Portland church latest demolition fight)
Two years ago, Kusyk's demolition of a century-old church on Northeast Failing Street drew protests from neighbors concerned about losing an historical structure.
As with all demolitions in Portland since April 2015, Kusyk was required to submit a certification regarding asbestos and lead-based paint with his permit application. On the certification form, he had to check a box, either "yes" or "no" for the presence of lead-based paint. Neither box was checked.
Yet, as was often the case, according to a Tribune review of about 100 such applications, the Bureau of Development Services signed off on the incomplete certification. (See related story: Demolition permit review shows cracks in lead paint mitigation)
But Kusyk faced an additional hurdle: concerted opposition from several of the property's neighbors including many of whom had young children, three with professional environmental experience, and one who hired a lawyer.
In response to their campaign, Kusyk taped a notice on the front of the house which referenced the letter he included in his email to Neely. The letter was from his environmental consultant, Don Young of Certified Environmental Consulting LLC. According to Young's letter, he had performed a toxic characteristic leaching procedure test which measured "various building materials collected from throughout [the] structure."
That is, it measured the lead content of the entire house — lumber, flooring, carpets and all — not just the paint. If the test gets too high a result, the debris has to go to an expensive, hazardous material landfill. As is almost always the case, the 10th Avenue house was well below the limit.
Kusyk's email to Neely said, "As you look at this letter I am providing you — the site tests to be 3 percent of the allowable lead content by Federal and State Regulations."
Young's letter taped to the house stated, "[A]ccording to Oregon rule; this material may be accepted at any construction/demolition debris landfill."
Both statements are true, but experts interviewed by the Tribune say they are not relevant to potential lead dust generated by a demolition. "That (toxic characteristic leaching procedure) test has nothing to do with airborne dust exposure," said Frank Raviola, laboratory director for Micro Analytical Laboratories Inc. in Emeryville, California. "It's all about what happens to debris in a landfill."
University of Washington School of Public Health Professor David Kalman agreed that the leaching report governing landfills "has little to do with hazard to neighbors."
Young did not reply to several requests for comment. Kusyk, who is a certified lead-based paint renovation contractor, declined to discuss anything related to the demolition.
But David Moryc, who lives across the street from the house, told neighbors that in a phone conversation with Kusyk the developer assured him that "the analysis he has done on leaching is more than sufficient."
High, but not extraordinary
Kusyk had no legal obligation to disclose the lead content of the house's paint. Although contractors demolishing houses in Oregon are required to perform an asbestos survey and make it available to the state Department of Environmental Quality upon request, there's no statutory requirement for a lead-paint test.
The city's BDS certification requires builders to certify the presence or absence of asbestos and lead-based paint on the property. If either is present, they also certify, under supposed "penalty of perjury," that they "will be remediated prior to demolition."
Kusyk did get the property's asbestos surveyed and abated properly according to DEQ. A letter to that effect from the asbestos contractor also graced the front of the house.
But unbeknownst to neighbors, Kusyk's consultant had also done a lead-paint test.
Nine days before issuing his toxic characteristic leaching procedure letter, Young provided Kusyk with a report on the lead-content of the house's paint. This reporter obtained it through a public records request to DEQ.
Young's report shows the exterior trim was 89,000 ppm (or 8.9 percent) lead, and the exterior siding was 190,000 ppm (or 19 percent) lead.
Experienced professionals differed as to whether this 19-percent figure is extraordinarily high or not.
David Jacobs, chief scientist for the National Center for Healthy Housing, said that 19 percent lead content was "fairly typical, but it's still high."
Aaron Corvin, a spokesman for Oregon OSHA, said, "It's somewhat high, but it's not extraordinary."
Zellnik learned of Young's paint report as it was shared among the neighbors. She says she then contacted Kusyk by phone and later emailed neighbors her account of the conversation. Kusyk, she said, told her, "You people don't know what you're talking about, the lead levels there are perfectly safe."
He added that "there is no danger … [since] very little or no lead will leave the property," Zellnik said.
The neighbors weren't satisfied, and one of them hired a lawyer, Brooks Foster of Chenoweth Law Group. Foster spoke to Kusyk to feel him out. Surprisingly, given that Young's lead-paint report said the opposite, Foster said Kusyk told him that the highest lead levels were in the exterior trim, a smaller surface than the siding.
Four neighbors took the additional step of informing Kusyk that they'd had had their properties tested for lead prior to the demolition.
The neighbor who'd hired Foster emailed Kusyk to say that going ahead with the demolition as planned would "result in litigation against you personally as well as your company" based on "negligence and malfeasance."
Another neighbor, Moryc, said Kusyk seemed unphased by the threat of legal action. But, "he did say the last thing he wanted was for negative publicity or neighborhood pressure on prospective buyers to reduce his ability to sell the property."
So, after a fair bit of fractious discussion, Kusyk ultimately agreed to neighbors' request that he use two 3-inch fire hoses during the demolition to suppress the dust.
Such wetting can cut the lead-fall by up to 61 percent according to research published by David Jacobs.
The neighbors, who'd wanted Kusyk to deconstruct the house rather than demolish it, were not happy with the compromise. But after months of struggle, they felt it was the best they could get.
The house on 10th Avenue was demolished last March.
Eudaly's proposal seeks to curtail the risk of future demolitions by requiring contractors to remove siding or trim that tests positive for lead paint.
Paul Grove of the Home Builders Association of Metropolitan Portland said his group hasn't signed off on Eudaly's proposal but was eager to work on the topic. "We look forward to partnering with the city and other stakeholders to continue to ensure a safe, effective policy that addresses the needs of our community," he said.
Panel moving forward with demolition dust regulations
A Monday meeting to discuss efforts to limit dangerous dust from Portland demolition sites offered plenty of congeniality and lots of unanswered questions.
The Bureau of Development Services Demolition Subcommittee is seeking more definitive language for City Commissioner Chloe Eudaly's proposal to reduce public exposure to lead paint by revamping housing demolition regulations.
The Oct. 16 meeting brought together builders and government experts with decades of experience and broad agreement that something needs to be done, including the designation of a "dust control manager" at each demolition site. But key questions remained unresolved, including:
• Whether all lead-based paint, including interior walls, should be manually removed prior to demolishing what's left. Or, whether removal of exterior siding and trim is sufficient.
• What training is needed for the dust control managers.
• What constitutes an appropriate lead test.
• Which neighbors need to be notified of an impending demolition.
Then, there's the issue of enforcement. The proposed language drafted by BDS Code and Policy analyst Nancy Thorington calls for a "pre-demolition site assessment" to check out the Dust Control Plan, a day-of demolition inspection, plus a post-demolition inspection.
Justin Wood, co-owner of Fish Construction NW, said that making a building permit contingent on adherence to demolition rules would go a long way toward effective enforcement.
Thorington plans to reconvene the subcommittee in a few weeks and then present the revised proposal to the full Development Review Advisory Committee.
Despite the uncertainties, Eudaly's Chief of Staff Marshall Runkel is still pushing for a City Council vote before the end of the year.