NYC Lead Paint Law Overview
Federal and state law concerning the regulation of lead dates back to 1971 with the establishment of the Lead-Based Paint Poisoning Prevention Act. This legislation, passed by Congress and enforced by the U.S. Department of Housing and Urban Development (HUD), attempted to prevent lead poisoning in children due to the use of lead-based paint in homes. It empowered the U.S. Secretary of HUD to create regulations concerning lead-based paint, particularly in federally-owned housing. However, the legislation did not create a fund for enforcement and there were comparatively few prosecutions in the next forty years.
In 1974, the Environmental Protection Agency (EPA) and the U.S. Department of Housing and Urban Development jointly published the first federal regulations restricting lead-based paint used in federally sponsored housing. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (known as CERCLA or the Superfund Act) further required that EPA to determine acceptable levels of lead contamination in the soil.
New York State Mayor’s Executive Order No. 53 (1989) was established to assess the lead levels in New York City Housing Authority (NYCHA) apartments. All children under the age of 6 living in NYCHA apartments are tested for blood lead levels. If a child is found to have an elevated blood lead level , an environmental study is conducted and, if lead paint is determined to be the cause, it is removed and/or covered over. Beginning on January 1, 2010, all NYC public children’s hospitals were mandated to screen all children under the age of 6 for blood lead levels. If a child is found to have an elevated blood level, an environmental inspection will be scheduled. A recent amendment to the New York State Sanitary Code stipulated that clinicians must now report all blood lead level test results to the NYC Department of Health and Mental Hygiene.
The 2002 Local Law 1, New York City Housing Maintenance Code, requires removal and/or covering of lead-based paint in apartments built before 1960 occupied by a child less than six years old. Removal of lead paint is required with every new tenancy. Under the New York City Lead Poisoning Prevention Law in 2003, the NYC Housing Preservation and Development is responsible for the regulation and enforcement of its requirements.
Local Law 1 of 2004 Provisions
Local Law 1 of 2004 establishes an aggressive schedule for compliance that calls for all owners of SREs to inspect and, if necessary, remediate lead-based paint hazards, and establish appropriate warning and maintenance plans, within specific timeframes. By September 2, 2004, owners must: By March 31, 2005, owners must: By September 15, 2005 and not more than three times a year thereafter, owners must: For properties constructed after 1960 with tenants younger than 18 years old, there are no requirements under Local Law 1 in lieu of a lead-based paint hazard assessment. However, NYS Lead Poisoning Primary Prevention Act requirements will apply. For properties constructed after 1960 without tenant screening, the owner is subject to fines without regard to the existence of a lead-based paint hazard. Should a lead-based paint hazard exist on a property, the owner must remediate it. If a unit is occupied by a "protected occupant," that is a tenant younger than 18 years of age, the owner must remedy the hazard within 30 days, or such other period of time as approved by the Department of Health and Mental Hygiene (DHMH) upon a determination that remediation cannot reasonably be completed within 30 days due to the type or severity of the hazard. All remediation activities must only be performed by a "person who has successfully completed training approved by the New York State Department of Health." Remediation must be performed in accordance with applicable federal standards and guidelines, for example, the EPA Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing.
Lead Hazard Reduction Rules
In addition to the obligations of notification and disclosure previously discussed, owners and managing agents of affected residential units are required to maintain the building in accord with all applicable provisions of the New York City Health Code and Administrative Code. This places an obligation on the owners to inspect and remediate any lead-based paint possibly existing in the pre-1960 units, as well as common areas.
Specifically, at 24 RCNY §173.14, the city’s Department of Health and Mental Hygiene ("DOH") has promulgated a regulation setting forth the standards for lead hazard inspections and maintenance procedures. The regulations at 173.14(h) and (i) set forth specific requirements for lead hazard reduction for residential property owners, employers, owners of common interest buildings and building sites, and any other persons involved in construction or repair work. Moreover, similar requirements are imposed in other locations within the Health Code, including 24 RNYC §§173.11, 173.15, 173.16 and 173.19.
Moreover, 24 RCNY §§173.19(e) and 173.19(f) specify the time frames for compliance with the lead hazard requirements and inspections. If a lead hazard inspection is required or performed, a written report must be submitted within five days of the completion of the inspection. Additionally, where lead hazards are present, the lead hazard remediation must be completed no later than 10 calendar days from the date the inspection report is delivered. However, complex contingency provisions apply: Lead hazard remediation may be extended an additional 15 days upon notice if the lead hazards are repairable, but beyond repair, if the lead hazards are not readily accessible, or if the lack of access was due to the unavailability of an eligible child for blood sampling.
In general, the regulations require lead hazards be removed or permanently enclosed, with an exception where only where repairable hazards are present, in which case the owner can use interim control methods, dust control and ongoing monitoring for at least one year. Finally, where lead hazards are determined to exist and less than 40% or more than 10% of the property’s unit or common area are affected, lead hazard remediation is generally required to be performed within one year. In instances where more than 40% of the property’s unit or common area are affected, and if less than 90% of the area is affected, cumulated hazardous materials must be remediated within 90 days.
With a few limited exceptions, upon receiving notices of violation or orders from DOH, or commencing an enforcement proceeding, property owners must submit a "Hazard Reduction Plan" within 15 days. For those owners whose units are no longer occupied for at least 60 days, or who demonstrate that such spaces are no longer used for housing purposes, the owner is relieved of the mandatory lead hazard reduction requirements. Upon DOH approval, the owner may reduce paint exposure risk without performing lead hazard reduction until the space is again used for dwelling purposes. The owner must provide notice to DOH 60 days before occupancy.
Effects Upon Tenants and Residents
The impact of New York City lead paint laws extends to landlords in terms of the responsibilities imposed. However, it is important for tenants and residents to understand the requirements as well, since these laws are intended primarily for their protection. As a result, tenants and residents can be assured that properties are up to code and meet all legal requirements to keep them safe from lead paint risks. There are a few key points that every tenant or resident in a property built before 1978 should know about lead paint laws in New York City.
One of the most effective ways to protect yourself as a tenant or resident in a pre-1978 home is to get informed about compliance regulations for lead paint. This will help you understand the responsibilities placed on your landlord and how you can hold them to task in the case of a suspected violation. Tenants have recourse when the property owners are not in compliance with the law. You do have to take action, though.
In order to enforce lead paint laws where you live, it is recommended that you first go to your landlord with your concerns. While the law is designed to protect you, you are the one who is empowered to ensure that all regulations are being followed. If a problem persists, you can contact the U.S. Environmental Protection Agency (EPA) or the New York City Department of Health and Mental Hygiene (DOHMH). The EPA provides online forms and also has a 24-hour hotline if there is an immediate concern.
In order to protect people from exposure to lead paint, New York City has established rigorous regulations. All tenants and residents living in a pre-1978 property in NYC should have received essential information about these laws and what they mean for their safety. Tenants and residents who are aware of the regulations can take an active role in ensuring that their home is fully compliant.
Non-Compliance Penalties
Failing to comply with NYC lead paint laws can result in a host of penalties to both contractors and landlords. As specified in Local Law 1 of 2004, property owners are prohibited from hiring a contractor not licensed in lead (or "abatement") removal. Furthermore, it prohibits the use of unlicensed contractors for lead-based repair or renovations. Furthermore, a 2006 amendment to the original law requires lead hazard control workers and supervisors be licensed by the New York City Department of Health and Mental Hygiene (DHMH). The DHMH is charged with administering the lead-safe work practices when contractors use lead-containing paint and soil. Lead hazard control costs can be tremendous. Defaulting on a contract for lead hazard control can cost up to $6,000 dollars if the work is part of an emergency response. Individual homeowners, property owners, and contractors that fail to abide by the local laws can be fined up to $2,000. In extreme cases, residential or non-residential building contractors can be subject for misdemeanor charges and face up to one year in prison should the act of lead paint abatement or renovation be considered a public nuisance . Liability for lead paint poisoning falls in two different categories: statutory and common law. Statutory liability is based on a violation of statute. Common law is generally based on negligence. Penalties for statutory liability may include: corrective actions, fines, imprisonment or both. Statutory liability for lead poisoning may arise from breaches of federal, state or municipal laws, codes or regulations, including the New York State Multiple Dwelling Law, New York City Housing Maintenance Code, New York Real Property Actions and Proceedings Law, federal Toxic Substance Control Act, and the federal Lead-Based Paint Disclosure Rule, among others. Common law claims for lead paint poisoning generally include the torts of negligence and breach of warranty. Recent lawsuits against New York City agencies that contract for lead hazard control have also included claims for breach of contract, gross negligence, breach of warranty, fraud, strict liability, and punitive damages. Typical defenses include, among others, assertion that the plaintiff was contributorily negligent.
Lead Paint Safety Best Practices
Best Practices for Landlords and Tenants
As a matter of course, landlords should inform tenants before they move in whether or not lead paint has been removed from the premises. Obviously, this can be an effective negotiating tool for some landlords in offering rentals to potential tenants if the landlord can make the case that the property has already been "lead hazard remediated," but all landlords have a duty to at least disclose whether lead paint is present. Tenants should ask the question before they sign the lease. If lead paint is present, tenants should take the necessary steps to ensure that they are doing everything they can to minimize their exposure, and should work with their landlord to remove it. Most New York City agencies recommend that, for example, the spacing between the bed and window be less than three feet to mitigate the possibility of lead contamination in the tenant’s living space.
If peeling paint or chipping paint is present, landlords should take appropriate and immediate steps to fix the problem sooner rather than later. The repair should be made using a certified lead abatement contractor, and the landlord should pay particular attention to lead dust, which can remain hazardous for a very long time. Lead dust can often be covered up but still be present, so landlords should undertake testing of their properties regularly and frequently. Both landlords and tenants should follow CDC guidelines for cleaning lead-contaminated dust and should not use a broom or vacuum cleaner to perform these cleaning duties.
Recent Developments and Future Trends
The Administration for Children Services (ACS) recently announced a major pilot program with the New York State Department of Health and the De Blasio administration to utilize lead exposure data to identify and drive service delivery in at-risk communities. In 2020, ACS will work with select community partners to conduct outreach to families with children in targeted communities.
The data will be used to provide families with information on lead poisoning prevention and to connect them with community health services, housing resources, early education centers, and public benefits.
Additionally, New York City’s Environmental Control Board, which oversees city debt collection litigation, recently updated its lead paint policies. The agency announced that it will no longer accept certificates of correction submitted by landlords with respect to lead paint violations involving windows or balconies. These non-compliant windows or balconies must be remedied by removal, enclosure, or encapsulation of all lead paint. The agency stated that this is based on their determination that certificates of correction continue to be submitted to the agency by landlords in excess of the legal requirements, which violate the intent of the law and jeopardize tenant safety. The agency stated that it will provide more detail on the upcoming changes in the coming weeks .
One notable piece of legislation introduced this year addresses the city’s increased reporting requirements. When an owner applies for a permit to renovate a multiple dwelling, the owner must sign a statement indicating that the owner understands the obligations under MDL 2546-d to report on lead hazards and lead poisoning by January 1, 2019. The obligation extends to owners of letting agencies. A similar obligation exists under Administrative Code 27-2056.8 requiring owners who know or suspect that a child has been poisoned with lead to file a report with the department.
In addition, lead hazard violations that are discovered during an inspection of a building will now be subject to a reduced time to cure from six to thirty days. If the lead hazard violation is in relation to a child with an elevated blood lead level or a pregnant individual, the time to cure is reduced from six to ten days. New York City Builders Institute President and General Counsel, Joseph Strasburg, told Crain’s that the five or 30 day deadline "would be impossible" for the construction trades that require certified lead abatement workers and commercial contractors.
While several recent initiatives have been instituted to address lead poisoning, a Pew Charitable Trusts report released last week shows that lead poisoning in New York City has remained relatively unchanged, at least according to the government’s narrow definition.