December 2022 Lead Briefing

Housing Preservation & Development


Get Ahead of Lead Briefing December 2022


Dear Property Owners,

Furthering our commitment to providing property owners information on their obligations under the law, the Department of Housing Preservation and Development (HPD) will be publishing a series of quarterly bulletins online and via email. Each bulletin will highlight one aspect of the law and is not meant to comprehensively cover all laws and rules that apply.

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This publication is intended for informational purposes only and is not intended as legal advice. This information is not a complete or final statement of all the duties of owners and tenants regarding laws and rules relating to housing in New York City.

REMINDER: Unit Testing Requirement (Local Law 31 of 2020)

Effective August 9, 2020, Local Law 31 of 2020 states that an owner must use an Environmental Protection Agency (EPA) certified lead-based paint inspector or risk assessor, independent of the owner or any firm hired to perform lead-based paint remediation, to test, using an x-ray fluorescence (XRF) analyzer, for the presence of lead-based paint in each dwelling unit of a building built prior to 1960. The inspection must take place within 5 years of the effective date of the law (by August 9, 2025) or within one year if a child under the age of 6 comes to reside in the unit (whichever is sooner). This requirement must also be met if the rental building was built between 1960 and 1978 and the owner has actual knowledge of lead-based paint. As of January 1, 2020, the term “reside” now means that a child under six years of age, routinely spends 10 or more hours per week in the dwelling unit in a pre-1960 building which includes both a child who lives in the apartment and a child who just visits for this period of time. The certified inspector or risk assessor who performs the testing must complete an affidavit (sample below) and the owner must provide the results of the testing to the tenant.

Sample Affidavit by Certified Individual Who Performed Lead-Based Paint Testing

More information about how the change in the definition of lead-based paint may affect the Local Law 31 testing requirement is available in the Frequently Asked Questions.

IMPORTANT DATES: Local Law 1 Annual Notice and Inspection Requirements

Penalties may be significant for failure to conduct these activities and maintain these records.

1. JANUARY 1 TO JANUARY 16: Send out the Annual Notice

Local Law 1 requires that owners send out the Annual Notice to each tenant between January 1 and January 16 to determine if there is a child under age six residing in a dwelling unit.

The Annual Notice asks the tenant to disclose if a child under the age of six resides in the dwelling unit.

The definition of the term "resides" is to routinely spend 10 or more hours per week in a dwelling unit, which includes both a child under age six who lives in the apartment and a child who just visits for this period of time.

There are two versions of the Annual Notice that owners can use:

Lead-based Paint Annual Notice in English and Spanish

Combined Lead-based Paint and Window Guard Annual Notice in English and Spanish

The notice must be provided to the tenant in at least English and Spanish and in duplicate (two copies of each) so the tenant can retain a copy and return a copy to the owner.

Keep evidence that this notice was delivered and retain the completed notice received back from the tenant. This notice is important because it determines where the owner must do other required activities required under Local Law 1, such as the annual inspection (see 4 below) and follow safe work practices (see further below).

2. BY FEBRUARY 15: Collect the Annual Notice

Make sure your tenants know where to return this notice.

If the tenant does not return the completed notice by February 15, the owner must conduct follow-up inspections.

3. FEBRUARY 16 TO MARCH 1: Follow-up on the Annual Notice

If a tenant has not returned the Annual Notice by February 15, the owner is required to attempt to determine if a child routinely spends 10 or more hours per week in the dwelling unit, which includes both a child under age six who lives in the apartment and a child who just visits for this period of time

An owner must keep records of the attempts made to contact the tenant to perform the investigation.

If the owner does not receive the completed notice from the tenant and cannot determine based on these follow-up investigations whether a child under six resides in the unit, the owner must also notify DOHMH in writing that no notice has been received back from the tenant (a copy of this notification should also be maintained by the owner). The owner’s notification to DOHMH should be mailed to:
Department of Health and Mental Hygiene — Healthy Homes
125 Worth Street, Sixth Floor, CN58
New York, NY 10013

HPD has created forms to assist an owner with documenting the notice was sent, received back, or any follow-up investigations done if the notice was not returned by the tenant: see the Sample Forms for Delivery of Annual Notice Compliance.

4. AS SOON AS YOU KNOW A CHILD UNDER 6 RESIDES: Do the annual inspection for lead-based paint hazards and fix deteriorated paint

Once the owner knows which units have a child under the age of six residing in a unit, the owner must perform a visual inspection to look for potential lead-based paint hazards. This inspection must be conducted at least annually or more often if the owner knows about a condition that may cause a lead hazard, or if the occupant makes a complaint about such a condition.

You do not need to hire a professional to conduct your annual visual inspection. However, HPD highly recommends that whoever conducts this inspection take the online visual assessment training offered by the federal Department of Housing and Urban Development to help the person know what to look for.

This inspection is a visual inspection looking for peeling paint, chewable surfaces (such as windowsills), deteriorated sub-surfaces, friction surfaces (painted doors or windows) and impact surfaces. It must include every surface in every room in the dwelling unit, including the interiors of closets and cabinets.

The person conducting the inspection should keep records about what they saw and HPD has created sample forms to assist with this. See the Sample Forms for Annual Investigation Compliance.

After the visual inspection is completed, the owner is required to give a copy of the inspection results to the tenant.

The owner must also do this visual inspection in any building common areas (such as a lobby, hallway, or stairwell) of the building where a child resides.

Next, the owner must repair any deteriorated paint promptly. If there is peeling paint found on a surface where the owner has no documentation of whether there is lead paint on the surface, the owner must presume that there is lead paint, and hire the appropriately certified contractor to complete the repairs safely and quickly or, (if you believe there is no lead in the paint because the wall is a new wall, for example) to test the peeling paint and keep documented evidence that the surface does not meet the definition of lead-based paint under Local Law 1. All documents regarding any work done by the appropriate contractors must be maintained for at least 10 years. See below for more information about safe work practices.

LEAD-SAFE WORK PRACTICES: FREQUENTLY ASKED QUESTIONS

Lead-based paint poisoning can cause developmental problems for children under the age of six. To limit exposure to lead-based paint hazards, Local Law 1 of 2004 (Local Law 1) requires property owners of buildings built before 1960, or buildings built between 1960 and 1978 where the owner knows there is lead-based paint, to identify and remediate lead-based paint hazards in apartments where a child under age six resides. Under Local Law 1, “resides” means that the child under 6 routinely spends 10 or more hours a week in the apartment, which includes both a child who lives in the apartment and a child who just visits for this period of time. New York City banned the sale of lead-based paint much sooner than the federal government did, and, therefore, has rules focused on residential buildings built before January 1, 1960. However, federal regulations for lead-based paint still also apply in New York City, and owners should be aware that those requirements for safe work practices extend to housing built before January 1, 1978. You can find more information about federal lead-based paint requirements at the U.S. Environmental Protection Agency (EPA) website: www.epa.gov/lead.

1. What are lead-safe work practices?

Lead-safe work practices are practical requirements that ensure that your tenants remain safe from lead-based paint dust while work affecting painted surfaces is being done. Under Local Law 1, some of these requirements are to:

Minimize dust dispersion, which means NOT dry scraping paint (which creates dust), using plastic sheeting on floors to stop dust from settling in cracks on the floor, and using plastic sheeting between work areas to minimize the spread of dust from work areas to non- work areas.

Clean daily, including mopping and HEPA vacuuming.

Prior to a tenant reoccupying the area, make sure the surfaces are clear of lead-contaminated dust.

Use qualified contractors, where required.

2. Who sets the requirements for lead-safe work practices?

In New York City, lead-safe work practices are currently governed by both federal and local agencies. The U.S. Environmental Protection Agency (EPA) and the Occupational Health and Safety Administration (OSHA) set general federal standards related to both occupant and worker safety and worker qualifications. The U.S. Department of Housing and Urban Development (HUD) also sets standards for housing that receives federal assistance, such as public housing and Section 8/Housing Choice Voucher programs. Locally, both the Department of Health and Mental Hygiene (DOHMH) and HPD set standards related to lead-safe work practices.

3. How do I know if I have to use lead-safe work practices?

Federal and local requirements vary slightly, so applying the strictest requirement is the best approach to make sure you are following both sets of rules. This means, if your building was built before 1978, you should use lead-safe work practices if you will be doing any repair or renovation that will disturb 2 square feet or more of paint in a single room, 10% or more of the surface area of a small component, or involve the removal of windows. This requirement should be followed whether or not there are any children in the specific unit or building because under federal regulations, all residential buildings built before January 1, 1978, are presumed to have some amount of lead-based paint either on the interior, exterior, or both. Under EPA regulations, you must also use safe work practices for exterior work if 20 square feet or more of paint will be disturbed.

HPD has created sample Safe Work Practices record keeping templates for owner to use to assist with following Local Law 1.

4. What are the penalties property owners can face if they don’t use lead-safe work practices?

Tenants can call 311 and file complaints whenever work is being done in either occupied apartments, vacant apartments or common areas of a building without proper tenant protection plans in place that are being followed by contractors/workers (see the Department of Buildings website for more detail on when a tenant protection plan is required and how to complete one). Whenever painted surfaces are being disturbed, the tenant protection plans must include some description about how dust will be contained, controlled, and cleaned to protect tenants. City agencies will be responsive to these complaints and may issue violations. The Department of Buildings (DOB) may also conduct proactive inspections of work in progress. If a property owner is determined to not have followed lead-safe work practices, there are multiple city- level penalties that can be issued by DOHMH and DOB. Penalties from DOHMH can range from $200 to $2,000 and penalties from DOB can range from $1,250 to $25,000.

5. What if I know my building has no lead-based paint?

Property owners can hire an EPA-certified lead-based paint inspector or risk assessor to test the painted surfaces to determine if there is no lead-based paint or identify specifically where lead- based paint is to assist with this compliance. This is the only way to be certain that your building has no lead-based paint.

A reminder that as of December 1, 2021, the threshold that determines lead-based paint under Local Law 1 was lowered to 0.5 mg/cm2 from 1.0 mg/cm2. More information about the change to the lead-based paint threshold can be found in HPD’s FAQ and the October 2021 Briefing.

If you’ve had your building’s paint tested, make sure you have all your test and/or abatement records. You might need to present those records to HPD, DOHMH or DOB, if requested. If you completed testing and found no lead, or abated the lead you found, and your building is built before January 1, 1960, you may wish to file with HPD for an exemption from the presumption of lead-based paint so that several requirements of NYC’s lead law will not apply to your building. For more information on exemptions, see HPD’s website.

6. Can I do lead-safe work practices myself?

Only if you are also properly certified.

If the work you are doing is not related to lead-based paint violations or Orders issued by the City, you or your contractor must have an EPA certification as a Renovation firm (also known as Renovation, Repair, and Painting or “RRP” certification) and employ EPA-certified Renovators.

If the work is pursuant to violations or your intent is to permanently remove lead-based paint, you or your contractor must have an EPA certification as a lead-based paint abatement firm (also known as Lead-based Paint Activities certification) and employ EPA-certified lead abatement workers and supervisors to complete the work.

Additionally, Local Law 1 requires that work in housing where a child under 6 routinely spends 10 or more hours a week that involves disturbing paint of more than 100 square feet in a room or involves the removal of 2 or more painted windows be performed by a contractor who is EPA certified in abatement. However, EPA would require this contractor to be certified in Renovation, so, to follow both EPA and Local Law 1, the contractor must be EPA certified in both Renovation and abatement.

In each case, whether the work requires an EPA-certified Renovation firm or a lead-based paint abatement firm, under Local Law 1, there is also required dust sampling that must be done by an EPA-certified lead-based paint inspector or risk assessor who is independent of the owner and the contractor who performed the work, to confirm that the area is clear of lead-contaminated dust.

7. How do I make sure a contractor is qualified?

EPA regulates worker training and certification requirements and outlines specific required steps if lead-based paint is going to be abated or paint is to be disturbed during repair, renovation, or painting. This includes, but is not limited to, required lead-safe work practices focused on setup, clean-up, and testing to confirm the cleanup was done properly.

For standard repair, renovation, or painting work (RRP), which under Local Law 1 includes any work that would disturb 2 square feet or more of paint in a room, property owners should confirm prior to work starting that:

The firm is an EPA-certified Renovation firm and retain a copy of their certification for your records.

The person doing the work is an EPA-certified Renovator and retain a copy of their certification for your records.

The EPA website has information about the Renovation, Repair and Painting (RRP) program. On this webpage, you can also search for an EPA-certified firm.

In addition, the EPA website provides information about Lead-Based Paint Abatement as well as offers guidance on the difference between RRP and Abatement. As noted above in question 6, some work performed may require the contractor to be certified both in RRP and abatement.

8. What other documentation must I have to show lead-safe work practices were used?

Under Article 14 of the NYC Housing Maintenance Code, property owners are required to retain lead-based paint records for no less than 10 years. All violation and non-violation work could be subject to a records request from HPD following the issuance of a Commissioner’s Order to Abate (COTA) from DOHMH or as a part of a proactive audit in accordance with Local Law 70 of 2019. More information about this proactive audit can be found in the January 2021 Briefing or by reviewing a sample Record Production Order.

Some of the records requested would include evidence that lead-safe work practices were followed if repair, renovation, or painting work was done that disturbed 2 square feet of paint or more or 10% or more of the surface area of a small component in a room in an apartment where a child under the age of 6 years old resides. If this has occurred, the property owner must provide HPD with:

The EPA certificate of the firm;

The EPA certificate of the person who performed the work;

An Affidavit from the EPA-certified firm that the work was performed in accordance with §27-2056.11 of Article 14 of the Housing Maintenance Code and applicable rules, that includes the start and completion date of the work and includes the address and contact information for the firm that completed the work;

A description and the location of the work performed in each room or the invoices for the work;

The results of the lead-contaminated dust clearance test from an independent laboratory certified by the state of New York;

An Affidavit from the certified person who took the dust sample verifying the address and the date it was taken and a copy of that person’s EPA certificate; and

Checklists completed when/if the occupants were allowed temporary access to the work area.

Under Local Law 1, there are additional requirements for the type of firm that can be used and required documentation if the work disturbs paint of more than 100 square feet in a room, involves the removal of 2 or more painted windows, or if the work being performed is in response to a violation.

9. Where can I get more local guidance?

Property owners can the access local lead-safe work practices guidance here:

HPD Guide to Local Law 1 of 2004 Work Practices

DOHMH Landlord Instructions for Complying with Commissioner’s Order to Remediate Lead Paint Hazards

NYC Health Code Section 173.14 Safety standards for lead-based paint abatement and remediation, and work that disturbs lead-based paint

DOHMH Information for Building Owners

Additionally, LeadFreeNYC is a great starting place for all questions about local law and rules on lead and lead-based paint. The city is regularly adding to this website, and it can easily direct the public to each agency’s specific website.