Washington vows to act on carbon monoxide hazards, but protections could be delayed for months

Housing advocates worry that delays could mean even more deaths from the hazardous gas during the winter, when risks are the greatest.
Nation's Public Housing Authorities To Have Budget Slashed In Trump's Proposed 2018 Budget
Public housing in Manhattan. Spencer Platt / Getty Images file

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By Suzy Khimm

WASHINGTON — Federal policymakers have vowed to take action to protect subsidized housing tenants from carbon monoxide poisoning after a series of recent deaths — but it may take months, if not longer, to see results.

After an NBC News investigation revealed the lack of protections, resulting in at least 13 deaths from carbon monoxide poisoning in federally subsidized housing since 2003, the Department of Housing and Urban Development announced in April that it would draft a new rule to require the detectors.

But HUD has yet to unveil its proposal, and procedural hurdles and bureaucratic delays could prolong the process, leading housing advocates to fear that more residents could die before it goes into effect. They are particularly concerned that the delay may drag on into the colder months, as some industry groups anticipate, when the risk of carbon-monoxide poisoning is higher.

The deaths tallied by NBC News span multiple administrations, including the Obama years, but generated little if any national attention until recent weeks. Ben Carson “is the first and only HUD secretary to take meaningful action against carbon monoxide poisoning in HUD-assisted housing,” said HUD spokesman Raffi Williams.

HUD said it would require the detectors through the formal federal rulemaking process, which involves White House approval, a public comment period and other time-consuming steps. HUD declined to offer a timeline, but some industry groups that work closely with the agency expect the process to take about 10 months to a year at a minimum.

HUD has taken an early step by creating an internal task force, including staff from HUD’s Office of Lead Hazard Control and Healthy Homes, the agency said, and is meeting with industry groups on Monday to discuss the issue. “Preventing these tragedies is our first priority,” HUD said in a statement.

Housing advocates who’ve pressed HUD on the issue, along with Sen. Bob Menendez, D-N.J., say that Carson should skip the rulemaking process altogether and begin requiring detectors immediately to save lives.

“Carson’s inaction is concerning given how many lives are at risk,” Menendez said in a statement. “HUD does not have to go through formal rulemaking to require CO detectors and avoid another tragedy.” Menendez believes that swift action by HUD should be the first step toward protecting residents, while Congress works to pass legislation that codifies the requirement into law, which would make it harder for future administrations to undo, according to his staff.

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Federal agencies must follow the lengthy rulemaking process if they make “substantive” policy changes, as opposed to new interpretations of existing laws or regulations. The requirements are intended to prevent “arbitrary and capricious” abuses of federal power under the Administrative Procedure Act.

But Emily Benfer, a visiting associate clinical professor of law at Columbia University and an environmental health expert, believes that HUD could simply add a requirement for detectors under the existing air quality standards for HUD housing, forgoing formal rulemaking.

“The amount of time they’ve taken to address this issue is so baffling,” Benfer said. “There could be lives lost in the days, months and years to come if they don’t take action.”

HUD does not officially track deaths from carbon monoxide in the housing that it oversees for more than 4.6 million families who receive rental assistance. NBC News’ tally is drawn from local news reports, government data sets and interviews with local officials. In addition to four residents who died this year in South Carolina and Michigan, the deaths include an elderly couple and an elderly woman outside of Pittsburgh; a couple in their 60s in Virginia; three residents of Oklahoma City; and a teenage girl in western Tennessee.

HUD says that it cannot legally skip formal rulemaking to require detectors unless Congress acts first to pass a bill allowing the agency “to move more quickly than the rulemaking process,” said Williams, the agency spokesman. “Congress can fix this by passing legislation requiring carbon monoxide detectors for those living in HUD housing units where detectors are needed.”

Democrats have introduced bills in both the House and Senate that would require carbon monoxide detectors in federally assisted housing. Rep. Jesus “Chuy” Garcia, D-Ill., the House bill’s sponsor, says the House Financial Services Committee wants to take up the legislation, which now has 26 co-sponsors.

But the committee has yet to take the first step in moving the bill forward, and even if it passes the Democratic-controlled House, there is no guarantee that it will pass the GOP-controlled Senate. Menendez is currently working with Sen. Tim Scott, R-S.C., to draft a bipartisan alternative, but his office declined to release specific details while the legislation is still being developed.

There is broad consensus among public health and fire safety experts about the hazards of carbon monoxide and the need for installing detectors. The colorless, odorless gas can kill within minutes at high levels, and the symptoms of carbon monoxide poisoning — headaches, dizziness, nausea — can often be mistaken for other ailments. The Centers for Disease Control and Prevention and the Consumer Product Safety Commission both recommend installing detectors in homes. Battery-powered detectors can cost as little as $20.

Many states and local governments require detectors in certain homes, but the requirements are uneven and inconsistently enforced. After the recent deaths, HUD issued a notice encouraging landlords of HUD housing to install detectors in homes with attached garages or gas-fired appliances, including many furnaces and stoves, but the agency does not currently penalize them for missing or inoperable detectors.

In some states, proposals to require carbon monoxide detectors in residences have run into opposition from lobbyists representing property managers, builders and realtors, among others. In Arkansas, industry groups recently pressured state legislators to remove requirements for smoke and carbon monoxide detectors in rental housing in a proposed bill, claiming the requirements, among other changes, would impose an undue economic burden on landlords and ultimately harm tenants. The bill died in committee last month.

On the federal level, there has been little vocal opposition so far toward the idea of requiring detectors in HUD housing. But from the start, some industry groups have raised concerns that the new requirements could burden local housing authorities already facing funding cuts and dwindling reserves.

“We don’t want an unfunded mandate — that is the biggest concern,” said Tim Kaiser, executive director of the Public Housing Authorities Directors Association. “There is already a significant backlog of capital repairs. I don’t know that there’s ‘extra’ funding available.”

Congressional Democrats behind the new carbon monoxide bills are trying to get ahead of such concerns, attaching $10 million in funding to the legislation that’s been introduced — a small price tag by federal standards. But while the legislation seems relatively uncontroversial, Congressional staffers still worry that it could fall by the wayside, precisely because it doesn’t generate heated partisan views. Advocates plan to keep pressing the issue publicly, to avoid more years of inaction, putting families at risk.

“CO needs to remain in the headlines to stress the urgency of legislation,” said Dorothy Kesling, who became an advocate for carbon monoxide safety after her 22-year-old daughter Lindsey died of accidental carbon monoxide poisoning in a private residence in 2010.

Kesling has been pushing Indiana to pass state and local laws to require carbon monoxide detectors for the past seven years and brushes aside industry groups’ concerns about the cost.

“If they’re going to start pinching pennies when it comes to the safety of tenants, they shouldn’t be in that business anyway,” she said.